UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


CHICAGO   STA.r? 
fJINOERY 
-^■>>«  ""-    T.pring  St.,    L.  A. 
Mutual  4434 


THE 


CODES  AND  STATUTES 


OF 


THE  STATE  OF  CALIFORNIA. 


BY 


THEODOEE   H.  HITTELL, 

ACTHOE   OF    "HITTELL's  GENEKAL   LAWS,"   AND   OTHEK  LAW  PUBLICATIONS. 


IN   TWO  VOLUMES. 

Vol.  I. 


SAN    FRANCISCO-. 

A.     L.     BANCKOFT    AND     COMPANY, 

Law  Book  Publishees,  Bookselleks  and  Stationees. 
1876. 


5 

C30 

Eutercil  according  to  Act  of  Congress,  in  the  year  187G, 

By  a.  L.  BANCROFT  &:  CO^ilPANY, 

In  the  office  of  the  Librarian  of  Congress,  at  Waslungtcn. 


Bks  rBANcmoo: 

A.    I..    U4N<.IM>IT   A   OOUPAKr, 
lUlNU  UK. 


PREFACE. 


This  work  is  designed  to  give,  in  as  complete  and  convenient 
a  form  as  is  practicable,  the  statute  laws  of  a  general  nature  of 
the  State  of  California,  as  they  at  present  exist.  These  laws 
consist  of  what  are  known  as  the  Codes,  and  various  other  acts 
which  were  either  continued  in  force  by  the  Codes,  or  were 
unaffected  by  them,  or  have  been  passed  since  their  adoption. 
The  separate  acts  referred  to,  if  they  treat  of  subjects  also 
treated  of  in  the  Codes,  will  be  found  inserted  in  proper  places 
in  the  Codes;  otherwise,  they  will  be  found  in  the  latter  portion 
of  the  work  under  the  oreneral  head  of  "  Statutes  in  Force." 
Many  special  and  local  acts,  particularly  such  as  modify  the 
general  rules  of  the  Codes,  or  such  as  affect  many  persons,  or 
are  of  important  application  in  many  counties,  are  also  given, 
the  plan  being  to  include  all  the  general  and  as  much  of  the 
special  and  local  legislation  of  the  State  as  can  be  contained 
in  a  digest  of  reasonable  compass.  Where  the  special  and  local 
acts  are  not  given  in  full,  they  are  referred  to  in  such  a  manner 
as  to  guide  the  inquirer  and  enable  him  readily  to  find  what 
he  seeks  for;  and  in  all  cases  the  special  and  local  laws  affecting- 
particular  counties  are  referred  to  under  the  heads  of  the 
respective  counties. 


Ticclaratioit  of  ^nktitnticucc. 

JULY    4,    1776. 

THE  UNANIMOUS  DECLARATION  OF  THE  THIRTEEN  UNITED  STATES  OF 
AMERICA  IN  CONGRESS  ASSEMBLED. 

i.  When,  in  tlie  course  of  human  events,  it  becomes  necessary  for  one  people 
to  dissolve  tlie  political  bands  which  have  connected  them  with  another,  and  to 
assume  among  the  powers  of  the  earth  the  separate  and  equal  station  to  which 
the  laws  of  nature  and  of  nature's  God  entitle  them,  a  decent  resjiect  to  the 
opinions  of  mankind  requires  that  they  should  declare  the  causes  which  impel 
them  to  the  separation. 

"We  hold  these  truths  to  be  self-evident:  that  all  men  are  created  equal;  that 
they  are  endowed  by  their  Creator  with  certain  inalienable  rights;  that  among 
these  are  life,  libert}',  and  the  pursuit  of  happiness;  that,  to  secure  these  rights, 
governments  are  instituted  among  men,  deriving  their  just  powers  from  the 
consent  of  the  governed;  that,  whenever  any  form  of  government  becomes 
destructive  of  these  ends,  it  is  the  right  of  the  people  to  alter  or  to  abolish  it, 
and  to  institute  new  government,  laying  its  foundation  on  such  principles,  and 
organizing  its  jDOwers  in  such  form,  as  to  them  shall  seem  most  likely  to  efiect 
their  safety  and  happiness.  Prudence,  indeed,  will  dictate  that  governments 
long  established  should  not  be  changed  for  light  and  transient  causes;  and, 
accordingly,  all  experience  hath  shown  that  mankind  are  more  disposed  to 
suffer,  while  evils  are  sufferable,  than  to  right  themselves  by  abolishing  the 
forms  to  Avhich  they  are  accustomed.  But  when  a  long  train  of  abuses  and 
usurpations,  pursuing  invariably  the  same  object,  evinces  a  design  to  reduce 
them  under  absolute  despotism;  it  is  their  right,  it  is  their  duty,  to  throw  olJ 
such  government,  and  to  provide  new  guards  for  their  future  security.  SucL 
has  been  the  patient  sufferance  of  these  colonies,  and  siich  is  now  the  necessitv 
which  constrains  them  to  alter  their  former  systems  of  government.  The 
history  of  the  present  king  of  Great  Britain  is  a  history  of  repeated  injuries  and 
usurpations,  all  having  in  direct  object  the  establishment  of  an  absolute  tyranm 
over  these  states.     To  prove  this,  let  facts  be  submitted  to  a  candid  world: — 

He  has  refused  his  assent  to  laws  the  most  wholesome  and  necessary  for  tht 
public  good. 

He  has  forbidden  his  governors  to  pass  laws  of  immediate  and  jjressing 
importance,  unless  suspended  in  their  operation  until  his  assent  should  be 
obtained;  and,  when  so  suspended,  he  has  utterly  neglected  to  attend  to  them. 
He  has  refused  to  pass  other  laws  for  the  accommodation  of  large  districts  o; 
people,  unless  those  people  would  relinquish  the  right  of  representation  in  the 
legislature — a  right  inestimable  to  them,  and  formidable  to  tyrants  only. 

He  has  calleel  together  legislative  bodies  at  places  unusual,  uncomfortable, 
and  distant  from  the  repository  of  their  public  records,  for  the  sole  purpose  ol 
fatiguing  them  into  compliance  with  his  measures. 

He  has  dissolved  representative  houses  repeateelly  for  opposing  with  manlv 
firmness  his  invasions  on  the  rights  of  the  people. 

He  has  refuseel,  for  a  long  time  after  such  dissolutions,  to  cause  others  to  be 

5 


i  DECLAPuVTlON  OF  IXDEPENDE^CE. 

electevl;  whereby  tlie  legislative  powers,  incapable  of  annibilation,  liave  returned 
to  the  people  at*  large  for  theii-  exercise— the  state  remaining-,  in  tbe  meantime, 
exposed  to  all  the  daugei-s  of  invasion  from  -n'ithout  and  convulsions  within. 

He  has  endeavored  to  prevent  the  jiopulation  of  these  states— for  that  purpose 
obstructing  the  laws  of  naturalization  of  foreigners,  refusing  to  pass  others  to 
eucourage  their  migration  hither,  and  raising  the  conditions  of  new  appropri- 
ations of  lauds. 

He  has  obstructed  the  administration  of  justice,  by  refusing  his  assent  to 
laws  for  establishing  judiciary  powers. 

He  has  made  judges  dependent  on  his  will  alone  for  the  tenure  of  their 
offices  luid  the  amount  and  payment  of  their  salaries. 

He  has  erected  a  multitude  of  new  offices,  and  sent  hither  swarms  of  officer? 
to  harass  our  people  and  eat  out  their  substance. 

He  has  kei)t  among  us,  in  times  of  peace,  standing  armies,  without  the  consent 
of  our  legislatures. 

He  has  aflfected  to  render  the  military  independent  of,  and  superior  to  the 
civil  power. 

He  has  combined  with  others  to  subject  us  to  a  jurisdiction  foreign  to  our 
constitution,  and  unacknowledged  by  our  laws — giving  his  assent  to  their  acts 
of  pretended  legislation; 

For  quartering  large  bodies  of  armed  troops  among  us; 

For  protecting  them,  by  a  mock  trial,  from  punishment  for  any  murders 
which  they  should  commit  on  the  inhabitants  of  these  states; 

For  cutting  of!"  our  trade  with  all  parts  of  the  world; 

For  imposing  taxes  on  us  without  our  consent; 

For  depriving  us,  in  many  cases,  of  the  benefits  of  trial  by  jury; 

For  transporting  us  beyond  seas  to  be  tried  for  pretended  offenses; 

For  al>olishiug  the  free  system  of  English  laws  in  a  neighboring  province, 
t-stablishing  therein  an  arbitrary  government,  and  enlarging  its  boundaries,  so- 
us to  render  it  at  once  an  example  and  tit  instrument  for  introducing  the  same 
absolute  rule  into  these  colonies; 

■;g  away  our  charters,  abolisliing  our  most  valuable  laws,  and  altering, 
i  !:dly,  the  forms  of  our  governments; 

For  suspending  our  own  legislatures,  and  declaring  themselves  invested  with 
jiower  to  legislate  for  us  in  all  cases  whatsoever. 

H«'  has  alxlicated  government  here  b}-  declaring  us  out  of  his  protection  and 
r  against  us. 

plundered   our  seas,  ravaged   our   coasts,   burnt    our   towns,    and 
V  €h1  the  lives  of  our  people. 

ii'   :s  at  this  lime  transjiorting  large  armies  of  foreign  mercenaries  to  complete 
thf  woiKh  of  <leath,  desolation  and  tyranny,  already  begun,  with  circumstances 
.••Ity  and   i»erfidy  scarcely  ]iaralleled  in  the   most  barbarous  ages,  and 
;,  unworthy  the  head  of  a  civilized  nation. 

He  Las  coUKtraiiied  our  fellow-citizens,  taken  captive  on  the  high  seas,  to 
1  ■  inst  their  (-(juntry,  to  become  the  executioners  of  their  friends 

4';'  ■  r  to  fall  th(inH«'lve8  by  their  haiuls. 

H<  ■  d  domestic  insurrection  among  us,  and  has  endeavored  to  bring 

on  tht  :ant«  of  our  frontiers  the  merciless  Indian  savages,  whose  known 

rule  of  warfare  is  an  undistinguished  destruction  of  all  ages,  sexes,  and 
conditions. 

In  tv»r>-  stage  of  these  oppressions,  we  have  petitioned  for  redress  in  the 
moht  hundilo  lemis.  Our  repeated  petiti«jn8  have  been  answered  only  by 
repeated  injury.  A  prince,  whose  character  is  thus  marked  by  every  act  which 
may  deOuc  a  tyrant,  is  unfit  to  be  the  ruler  of  u  free  people. 

G 


DECLAKATION  OF  INDEPENDENCE. 


Nor  have  we  been  wanting  in  attentions  to  our  British  brethren.  We  have 
warned  them,  from  time  to  time,  of  attempts,  by  their  legislature,  to  extend  an 
unwarrantable  jurisdiction  over  us.  We  have  reminded  them  of  the  circum- 
stances of  our  emigration  and  settlement  here.  We  have  appealed  to  their 
native  justice 'and  magnanimity,  and  we  have  conjured  them,  by  the  ties  of  our 
common  kindred,  to  disavow  these  usurpations,  which  would  inevitably  inter- 
rupt our  connections  and  correspondence.  They,  too,  have  been  deaf  to  the 
voice  of  justice  and  consanguinity.  We  must,  therefore,  acquiesce  in  the 
necessity  which  denounces  our  separation,  and  hold  them,  as  we  hold  the  rest 
of  mankind,  enemies  in  war;  in  peace,  friends. 

We,  therefore,  the  representatives  of  the  United  States  of  America,  in  General 
Congress  assembled,  appealing  to  the  Supreme  Judge  of  the  world  for  the 
rectitude  of  our  intentions,  do,  in  the  name  and  by  the  authority  of  the  good 
people  of  these  colonies,  solemnly  publish  and  declare  that  these  united  colonies 
are,  and  of  right  ought  to  be,  free  and  independent  states;  that  they  are 
absolved  from  all  allegiance  to  the  British  Crown,  and  that  all  political  connec- 
tions between  them  and  the  State  of  Great  Britain  is,  and  ought  to  be,  totally 
dissolved;  and  that,  as  free  and  independent  states,  they  have  full  power  to 
levy  war,  conclude  peace,  contract  alliances,  establish  commerce,  and  to  do  all 
other  acts  and  things  which  independent  states  may  of  right  do.  And  for  the 
support  of  this  declaration,  with  a  firm  reliance  on  the  protection  of  Divine 
Providence,  we  mutually  pledge  to  each  other  our  lives,  our  fortunes,  and  our 
sacred  honor. 

The  foregoing  declaration  was,  by  order  of  Congress,  engrossed  and  signed 
by  the  following  members: 


John  Hancock, 
Samuel  Adams, 
John  Adams, 
Robert  Treat  Paine, 
Elbridge  Gerry, 
Josiah  Bartlett, 
William  Whipple, 
Matthew  Thornton, 
Stephen  Hopkins, 
William  Ellery, 
C^sAR  Rodney, 
George  Read, 
Thomas  M'Kean, 
Roger  Sherman, 
Samuel  Huntington, 
William  Williams, 
Richard  Stockton, 
John  AVitherspoon, 
Francis  Hopkinson, 
John  Hart, 
Abraham  Clark, 
William  Hooper, 
Joseph  Hewes, 
John  Penn, 
Robert  Morris, 
BenjajShn  Rush, 
Benjamin  Franklin, 
John  Morton, 


Oliver  Wolcott, 

Samuel  Chase, 

William  Paca, 

Thomas  Stone, 

Charles  Carroll,  of  Carrollton. 

W^iLLiAM  Floyd, 

Philip  Livingston, 

Francis  Lewis, 

Lewis  Morris, 

George  Wythe, 

Richard  Henry  Lee, 

Thomas  Jefferson, 

Benjamin  Harrison, 

Thomas  Nelson,  Jr., 

Francis  Lightfoot  Lee, 

Carter  Braxton, 

George  Clymer, 

James  Sj\nTHE, 

George  Taylor, 

James  Wilson, 

George  Ross, 

Edward  Rutledge, 

Thomas  Heyward,  Jr., 

Thomas  Lynch,  Jr., 

Arthur  Meddleton, 

Button  G\\innett, 

Lyman  Hall, 

George  Walton. 


(loitoHlulioii  of  lljc  Idiitcii  Strttcs. 


ii.  Pi-eamhle. 

We,  the  people  of  the  United  States,  in  order  to  form  a  more  perfect  union, 
establish  justice,  insure  domestic  tranquillity,  provide  for  the  common  defense, 
promote  the  general  welfare,  and  secure  the  blessings  of  liberty  to  ourselves 
and  our  i>usterity,  do  ordain  and  establish  this  Constitution  for  the  United 
States  of  ^Vmerica. 

AETICLE  I. 
Legi^alive  Poicer — Congress. 

Section  1.  All  legislative  powers  herein  granted  shall  be  vested  in  a  congress 
of  the  United  States,  which  shall  consist  of  a  senate  and  house  of  represent- 
atives. 

House  of  Represeixiaiives. 

Sec.  2.  The  house  of  representatives  sliall  be  composed  of  members  chosen 
every  second  year  by  the  people  of  the  several  states,  and  the  electors  in  each 
state  shidl  have  the  quulilications  requisite  for  electors  of  the  most  numerous 
branch  of  the  state  legislature. 

No  person  shall  be  a  representative  who  shall  not  have  attained  to  the  age  of 
twenty-five  years,  and  been  seven  years  a  citizen  of  the  United  States,  and  who 
shall  not,  when  elected,  be  an  inhabitant  of  that  state  in  which  he  shall  be 
chosen. 

Representatives  and  direct  taxes  shall  be  apportioned  among  the  several 
states  which  may  be  included  within  this  Union,  according  to  their  respective 
numbers,  which  shall  be  determined  by  adding  to  the  whole  number  of  free 
persoiis,  including  those  bound  to  service  for  a  term  of  years,  and  excluding 
Iniliuns  not  taxed,  three  iifths  of  all  other  persons.  The  actual  enumeration 
sluill  be  made  within  three  years  after  the  first  meeting  of  the  congress  of  the 
United  States,  and  within  every  subsequent  term  of  ten  years,  in  such  manner 
as  Uiey  shidl  l»y  law  direct.  The  number  of  representatives  shall  not  exceed 
one  for  every  thirty  thousand,  but  each  state  shall  have  at  least  one  represent- 
otive;  and  until  such  enumeration  shall  be  made,  the  state  of  New  Hampshire 
shall  lie  entitled  to  choose  three,  Massachusetts  eight,  Rhode  Island  and  Prov- 
idence Plantations  one,  Connecticut  five.  New  York  six.  New  Jersey  four, 
PennKylvunia  eight,  Delaware  one,  ilaryland  six,  Virginia  ten,  North  Carolina 
five,  South  ('ur«jlina  five,  and  Ge<jrgiu  three. 

When  vu<-ancieK  happen  in  the  representation  from  any  state,  the  executive 
authority  thereof  shall  issue  writs  of  election  to  fill  such  vacancies. 

The  house  of  representatives  shall  choose  their  siieaker  and  other  officers; 
and  shall  have  the  sole  power  of  impeachment. 
Senate. 

Set.  'A.  Tlie  Honnt<'  of  the  Unit<nl  States  shall  Ite  composed  of  two  senators 
from  each  State,  chosen  by  the  legislature  thereof  for  six  years;  and  each  senator 
shall  liave  one  vote. 

Imnjcdiately  after  they  shall  be  assembled  in  consequence  of  the  first  election, 
they  shall  be  divided  as  ecjually  as  may  be  into  three  classes.    The  seats  of  the 

8 


CONSTITUTION  OF  THE  UNITED  STATES.  ii-iii 

senators  of  the  first  class  shall  be  vacated  at  tlie  expiration  of  the  second  year, 
of  tlie  second  class,  at  the  expiration  of  the  fourth  year,  and  of  the  third  class, 
at  the  expiration  of  the  sixth  year,  so  that  one  third  may  be  chosen  every 
second  year;  and  if  vacancies  happen  by  resignation,  or  otherwise,  during  the 
recess  of  the  legislature  of  any  state,  the  executive  thereof  may  make  temporary 
appointments  until  the  next  meeting  of  the  legislature,  which  shall  then  fill 
such  vacancies. 

No  person  shall  be  a  senator  who  shall  not  have  attained  to  the  age  of  thirty 
3'ears,  and  been  nine  years  a  citizen  of  the  United  States,  and  who  shall  not, 
when  elected,  be  an  inhabitant  of  that  state  for  which  he  shall  be  chosen. 

The  vice-president  of  the  United  States  shall  be  president  of  the  senate,  but 
shall  have  no  vote  unless  they  be  equally  divided. 

The  senate  shall  choose  their  other  ofificers,  and  also  a  president  pro  tempore, 
in  the  absence  of  the  vice-president,  or  when  he  shall  exercise  the  office  of 
president  of  the  United  States. 

The  senate  shall  have  the  sole  power  to  try  all  impeachments.  When  sitting 
for  that  purpose,  they  shall  be  on  oath  or  affirmation.  When  the  president  of 
the  United  States  is  tried,  the  chief  justice  shall  preside:  And  no  person  shall 
be  convicted  without  the  concurrence  of  two  thirds  of  the  members  present. 

Judgment  in  cases  of  impeachment  shall  not  extend  further  than  to  removal 
from  office,  and  disqualification  to  hold  and  enjoy  any  office  of  honor,  trust,  or 
profit  under  the  United  States;  but  the  party  convicted  shall  nevertheless  be 
liable  and  subject  to  indictment,  trial,  judgment  and  punishment,  according 
to  law. 

Elections  for  senators  and  representatives. 

Sec.  4.  The  times,  places  and  manner  of  holding  elections  for  senators  and 
representatives,  shall  be  prescribed  in  each  state  by  the  legislature  thereof;  but 
the  congress  may  at  any  time  by  law  make  or  alter  such  regulations,  except  as 
to  the  places  of  choosing  senators. 

Sessions  of  congress. 

The  congress  shall  assemble  at  least  once  in  every  year,  and  such  meeting 
shall  be  on  the  first  Monday  in  December,  unless  they  shall  by  law  appoint  a 
difierent  day. 
iii.  Poicers  of  houses  of  congress — Quorum. 

Sec.  .5.  Each  house  shall  be  the  judge  of  the  elections,  retiirns  and  qualifi- 
cations of  its  own  members,  and  a  majority  of  each  shall  constitute  a  quorum 
to  do  business;  but  a  smaller  number  may  adjourn  from  day  to  day,  and  may 
be  authorized  to  compel  the  attendance  of  absent  members,  in  such  manner, 
and  under  such  penalties  as  each  house  may  provide. 

Each  house  may  determine  the  rules  of  its  proceedings,  punish  its  members 
for  disorderly  behavior,  and,  with  the  concurrence  of  two  thirds,  expel  a  member. 

Each  house  shall  keep  a  journal  of  its  proceedings,  and  from  time  to  time 
publish  the  same,  excepting  such  parts  as  may  in  their  judgment  require 
secrecy;  and  the  yeas  and  nays  of  the  members  of  either  house  on  any  question 
shall,  at  the  desire  of  one  fifth  of  those  present,  be  entered  on  the  journal. 

Neither  house,  during  the  session  of  congress,  shall,  without  the  consent  of 
the  other,  adjourn  for  more  than  three  days,  nor  to  any  other  place  than  that 
in  which  the  two  houses  shall  be  sitting. 

Compensation  of  members — Privileges — Disabilities. 

Sec  G.  The  senators  and  representatives  shall  receive  a  compensation  for 
their  services,  to  be  ascertained  by  law,  and  paid  out  of  the  treasury  of  the 
United  States.  They  shall  in  all  cases,  except  treason,  felony  and  breach  of 
the  peace,  be  privileged  from  arrest  during  their  attendance  at  the  session  of 

9 


Ill 


CON'STITrTION  OF  THE  I'XITED  STATES. 


their  respective  bouses,  and  in  going  to  and  returning  from  the  same;  and  for 
auv  spt  .rli  i.r  dcljate  in  either  house,  they  shall  not  be  questioned  in  any  other 

place. 

Xo  seiKUor  or  represintalive  shall,  during  the  time  for  whicli  he  was  elected, 
l>e  appointed  to  any  civil  office  under  the  authority  of  the  United  States,  which 
shall  have  been  cx-eated,  or  the  emoluments  whereof  shall  have  been  increased 
duriu"  such  time;  and  no  person  holding  any  office  under  the  United  States, 
shall  be  a  member  of  either  house  during  his  continuance  in  office. 
Manner  of  pa.<siii'i  bills— Onleis,  rexohdioiis,  etc. 

Sec.  7.  All  bills  for  raising  revenue  shall  originate  in  the  house  of  represent- 
atives; but  the  senate  may  propose  or  concur  with  amendments  as  on  other 
bills.  ' 

Everv  bill  which  shall  have  passed  the  house  of  representatives  and  the 
senate,  shall,  before  it  become  a  law,  be  presented  to  the  president  of  the  United 
States;  if  he  approve  he  shall  sign  it,  but  if  not  he  shall  return  it,  Avith  his 
objections,  to  that  house  in  which  it  shall  have  originated,  who  shall  enter  the 
objections  at  large  on  their  journal,  and  proceed  to  reconsider  it.  If,  after 
such  reconsideration,  two  thirds  of  that  house  shall  agree  to  pass  the  bill,  it 
shall  be  sent,  together  with  the  objections,  to  the  other  house,  b}'  which  it  shall 
likewise  be  reconsidered,  and  if  approved  by  two  thirds  of  that  house,  it  shall 
become  a  law.  But  in  all  such  cases  the  votes  of  both  houses  shall  be  deter- 
mined by  yeas  and  nays,  and  the  names  of  the  persons  voting  for  and  against 
the  bill  shall  be  entered  on  the  journal  of  each  house  respectively.  If  any  bill 
shall  not  be  i-eturued  by  the  president  within  ten  da^'S  (Sundays  excepted)  after 
it  shall  have  been  presented  to  him,  the  same  shall  be  a  law,  in  like  manner  as 
if  he  hud  signed  it,  unless  the  congress  by  their  adjournment  prevent  its  return, 
in  which  case  it  shall  not  be  a  law. 

Every  order,  resolution  or  vote  to  which  the  concurrence  of  the  senate  and 
bouse  of  representatives  may  be  necessary'  (except  on  a  question  of  adjourn- 
ment) shall  be  presented  to  the  president  of  the  United  States;  and  before  the 
same  uliall  take  effect,  shall  be  approved  by  him,  or,  being  disapproved  by  him, 
shall  be  rep:isse<l  by  two  thirds  of  the  senate  and  house  of  representatives, 
according  to  the  rules  and  limitations  prescribed  in  the  case  of  a  bill. 
Powers  of  congress. 

Sic.  8.  The  congi-ess  shall  have  power  to  lay  and  collect  taxes,  duties,  im- 
pKhts  and  excises,  to  pay  the  debts  and  provide  for  the  common  defense  and 
geneml  welfare  of  the  United  States;  but  all  duties,  imposts  and  excises  shall 
]>e  uniform  throughout  the  United  States; 

To  borrow  money  on  the  credit  of  the  United  States; 

To  regulate  commerce  with  foreign  nations,'"  and  among  the  several  states, 
and  with  the  Indian  tribes; 

To  establish  an  uniform  rule  of  naturalization,""^  and  uniform  laws  on  the 
subject  of  bankruptcies  throughout  tlie  United  States; 


1  ■    T),.   ►Uii-i.  l."M  t  .  l.Rv.    r.ornrront  power  with  Io^k  hiuI  hinilxr  lloalcd  down  a  stream  from  that  utate 

■      uu(l<.'rHUiidiDK  li.lo  un  ftdji.liiiug  htatc.  C«rnou  IMvt-r  L.  Co  VB.  Pattcr- 

'luuat  muKt  givu  Kuii,  xt  Cal.  :i::i. 

■|  hi'  tJix  updii  jiaRsc-nRcrR.  provided  for  by  the  act  of 

.it  iu  t.i.ugriM>.   People  vs.  May  U,  IHCi  (StutB.  iso.i,.''.:!'.)).  wiiH  a  ri(,nilutioiiof  coin- 

'  iinrcc  mid  ripiiKiiBiit  to  the  IT.  S.  CouBtitution.  People 

•  >•.  \Oii  ii  1  ii  rcliivd.  Mitchell  vh.  Uuyinoinl,  :h  Oul.  4'.»2. 

The  jMiwer  to  cxclinle  from  tlie  liiiilts  of  a  Btate  per- 

of  rornmercUI  boiim  In  tlic  lull  i»ihhikh1oii  of  tlitir  fuculties,  sound  in 

'                                                                     '•  pentonn  M  well  body,  wl.n  arc  ii<-lth<T  pauixTs,  vuKaboudgor  crijiiiuals, 

'  Ih  a  rci^iilntiiin  of  ciDunicrce,  which  the  Ktatc,  even  ia 

■   «o  Chinc'iic  irn-  tin-  abxincc  of  leKit-hitimi  on  the  h-ubject,  cannot  exer- 

'                                                                      l^lon.  Lin  Slog  tlt.e.   SUle  vh  HleaiuBhip  ConKtltutiou,  42  Gal.  578. 

Y8.  "»»:  I    r.i.  .    •:.;',. J.  ('')  See  thlu  power  UiBCUHBed.    Ex  parte  Kuowles,  5 

A  RUti;  h*«  L  '  j.'/wcr  to  pkM*  Uw  impoaiugtioUon  Cal.  SOO. 

10 


CONSTITUTION  OF  THE  UNITED  STATES.  iii 

To  coin  money,  regnlatc  the  value  thereof,  and  of  foreign  coin,  and  fix  the 
standard  of  weights  and  measures;*"' 

To  provide  for  the  punishment  of  counterfeiting  the  securities  and  current 
coin  of  the  United  States; 

To  establish  post-offices  and  post-roads; 

To  promote  the  progress  of  science  and  useful  arts  by  securing  for  limited 
times  to  authors  and  inventors  the  exclusive  right  to  their  respective  "writings 
and  discoveries; 

To  constitute  tribunals  inferior  to  the  supreme  court; 

To  define  and  pi^nish  piracies  and  felonies  committed  on  the  high  seas,  and 
offenses  against  the  law  of  nations; 

To  declare  war,  grant  letters  of  marque  and  reprisal,  and  make  rules  con- 
cerning captures  on  land  and  water; 

To  raise  and  support  armies,  but  no  appropiiations  of  mone}'  to  that  use 
shall  be  for  a  longer  term  than  two  years; 

To  provide  and  maintain  a  navy; 

To  make  rules  for  the  government  and  regulation  of  the  laud  and  naval 
forces; 

To  provide  for  calling  forth  the  militia  to  execute  the  laws  of  the  Union, 
sujipress  insurrections  and  repel  invasions; 

To  provide  for  organizing,  arming,  and  disciplining  the  militia,  and  for  §'ov- 
erning  such  part  of  them  as  may  be  employed  in  the  service  of  the  United 
States,  reserving  to  the  states  respectively,  the  apjoointment  of  the  officers,  and 
the  authority  of  training  the  militia  according  to  tlie  discipline  prescribed  by 
congress; 

To  exercise  exclusive  legislation  in  all  cases  whatsoever,  over  such  distiict 
(not  exceeding  ten  miles  square)  as  may,  by  cession  of  particular  states,  and 
the  acceptance  of  congress,  become  the  seat  of  the  government  of  the  United 
States,  and  to  exercise  like  authorit}'  over  all  i^laces  purchased  by  the  consent 
of  the  legislature  of  the  state  in  which  the  same  shall  be,  for  the  erection  of 
forts,  magazines,  arsenals,  dockyards,  and  other  needful  buildings;  and 

To  make  all  laws  which  shall  be  necessary  and  proper  for  carrying  into  exe- 
cution the  foregoing  powers,  and  all  other  powers  vested  by  this  Constitution 
in  the  government  of  the  United  States,  or  in  any  department  or  officer  thereof. 

Limitations  of  the  po\cers  of  congress. 

Sec.  9.  The  migration  or  importation  of  such  persons  as  any  of  the  states 
now  existing  shall  think  proper  to  admit,  shall  not  be  prohibited  by  the  con- 
gress prior  to  the  year  one  thousand  eight  hundred  and  eight,  but  a  tax  or  duty 
may  be  imposed  on  such  importation,  not  exceeding  ten  dollars  for  each  person. 
The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  suspended,  unless 
when  in  cases  of  rebellion  or  invasion  the  public  safety  may  require  it. 
No  bill  of  attainder  or  ex  post  facto  law  shall  be  passed. 

No  capitation,  or  other  district  tax  shall  be  laid,  unless  in  proportion  to  the 
census  or  enumeration  hereinbefore  directed  to  be  taken. 

No  tax  or  duty  shall  be  laid  on  articles  exported  from  any  state. 
No  preference  shall  be  given  by  any  regulation  of  commerce  or  revenue  to 
the  ports  of  one  state  over  those  of  another;   nor  shall  vessels  bound  to,  or 
from,  one  state,  be  obliged  to  enter,  clear,  or  pay  duties  in  another. 

No  money  shall  be  drawn  from  the  treasury,  but  in  consequence  of  appro- 
la)  The  U.S.  Constitution  confers  upon  congress  the        This  clause  does  not  prevent  a  state  from  passing 
power  to  issue  treasury  notes  or  bills  of  credit,  not  in     la^\■s  to  punish   counterfeiting.    People  vs.  'V\hite,  ol 
express  terms  biit  as  a  power  necessarily  implied;  and     Cal.  183. 
also  to  ma!<e  such  notes  or  bills  a  legal  tender  in  pay- 
naent  of  debts.  Lick  vs.  Faulkner,  25  Cal.  401. 

11 


m-v 


COXSTITITIOX  OF  THE  TNITED  STATES. 


priatious  made  bylaw;  and  a  regular  statement  and  account  of  the  receipts 
and  expenditures  of  all  public  money  shall  be  published  from  time  to  time. 

No  title  of  nobility  shall  be  granted  by  the  United  States:   And  no  person 
holding  any  office  of  profit  or  trust  under  them,  shall,  \Yithout  the  consent  of 
the  cougres.s,  accept  of  any  present,  emolument,  ollice,  or  title,  of  any  kind 
whatever,  from  any  king,  prince,  or  foreign  state. 
iv.  LimUation  of  ixm-rrs  of  indiriduol  states. 

Sec.  10.  No  state  shall  enter  into  any  treaty,  alliance,  or  confederation;  grant 
letters  of  marque  and  reprisals;  coin  money;  emit  bills  of  credit;  make  auy- 
tliiug  but  gold  and  silver  coin  a  tender  in  payment  of  debts ;'-'^  pass  any  bill  of 
attainder,  ex  post  facto  law,  or  law  inipairiug  the  obligation  of  contracts;'"^  or 
grant  any  title  of  nobility. 

No  state  shall,  without  the  consent  of  the  congress,  lay  any  imposts  or 
dutie.s  ou  imports  or  exports*"'  except  what  may  be  absolutely  necessary  for 
cxeciitiug  its  inspection  laws;  and  the  net  produce  of  all  duties  and  imposts, 
laid  bv  any  state  ou  imports  or  exports,  shall  be  for  the  use  of  the  treasury  of 
the  United  States;  and  all  such  laws  shall  be  subject  to  the  revision  and  control 
of  the  congress. 

No  state  shall,  without  the  consent  of  congress,  lay  any  duty  of  tonnage, 
keep  troops,  or  ships  of  war  iii  time  of  peace,  enter  into  any  agreement  or  com- 
pacj  with  another  state,  or  with  a  foreign  power,  or  engage  in  war,  unless 
actually  invaded,  or  in  such  imminent  danger  as  wdll  not  admit  of  delay. 

ARTICLE  II. 
v.  Exrrtid,'  ^. •.».., — President  and  vice-jjresident. 

Section  1.  The  executive  power  shall  be  invested  in  a  president  of  the 
United  States  of  Amenca.  He  shall  hold  his  office  during  the  term  of  four 
years,  and,  together  with  the  vice-president,  chosen  for  the  same  term,  be 
elected,  as  follows: — 

Each  state  shall  appoint,  in  such  manner  as  the  legislature  thereof  may 
direct,  a  number  of  electors,  equal  to  the  whole  number  of  senators  and  repre- 
sentiitives  to  which  the  state  may  be  entitled  in  the  congress:  but  no  senator 
or  representative,  or  person  holding  an  office  of  trust  or  profit  under  the 
United  States,  shall  be  appointed  an  elector. 

I  The  electors  shall  meet  in  their  respective  states,  and  vote  by  ballot  for  two 
ptrx'iis,  of  whom  one  at  least  shall  not  be  an  inhabitant  of  the  same  state  with 
themselves.  And  they  shall  make  a  list  of  all  the  persons  voted  for,  and  of  the 
numlKT  of  votes  for  each;  which  list  they  shall  sign  and  certify,  and  transmit 
Bculcd  to  the  seat  of  the  government  of  the  United  States,  directed  to  the  presi- 
dent of  Uie  senate.     The  president  of  the  senate  shall,  in  the  presence  of  the 

!li<-  tiicanlng  of  tlils  An  act  iirovidiug  that,  if  a  person  who  hasbeeu  con- 

■   •>'«.  victfd  of  ji'lty  larreny  nhall  agniu  coiuiiiit  petty  lar- 

1-"  ■<  liy  a  ((Piitract  <ciiy  ho  shall  Ik-  (U-cnicd   guilty  of  a  felony,  is  uot  an 

b"                                                                             ■  f  the  obli|>a-  ex  jioht  farto  hiw,  even  when  applied  to  a  person  who 

U                                                                               n  Vh.  Miigee,  coniniilted  the  llrst  ollensi;  prior  to  tlie  pas^age  of  the 

*'  Htntiite.   Kx  ])arte  Gutierrez,  4.')  Cal.  4'ii». 

A  law  rlianKln«  the  forms  of  proeediiro  bv  which  per- 

A                                                M>  to  rt^iniUtf  tha  remedy  cons  an  used  .if  crime  are  to  be  tried  Jor  offenses  coin- 

••  ■                                              ''     '  ''    ''•'•' "  ■■  ■  "iiH  mltted  iKfiire  the  law  was  passed,  is  not  an  ex  post  facto 

"'                                                                                                I  hiw.   J'eojile  vs.  Mortimer,  •!«  Cal.  IH. 

•')  C")  The  revenue  act  of  Ajiill  W,  IH.'iH,  go  far  as  it 

•;  ■                                                               ■-••    ■      • '.  JO  ImposeH  a  tax  upon  bills  of  Ij.dintj;  for  transportation 

<-'»  "f  Kold  or  silver  Irom  this  slate  to  another,  is  in  emu 

A                                                           1  .n.  i»wu-d  iMiween  fllei  with  this  clause.    Brummagiin  vs.  TiUiui/hast,  18 

tJi-                                                                 In  Judicial  HBlu  Cftl.  -IM. 

»                                                                           of  ouch  Wile.  The  art  of  May  3,  IH.VJ,  providluK  for  appointment  of 

•J' •                                                                       't.   Moore  VH.  a  ganger  at  San  Francisco,  was  not  uncon^tiiullonal  ae 

W'  ■  Impi'sing  duties  on  imp.irts  by  state  authority,  because 

u-<\  and  "not  s  state  has  a  right  to  pass  inspection  laws,  and  this 

P»i                                                                         «»"•  It  1*  not  Involves  the  power  of  enforcing  them  by  ade.puite  pro- 

C";- .                                                    ii  Jnv«lldort»  vIhIodh  lo  pay  inspecting  officers.  Addison  vs.  Saulnier, 

•Utlion/<  k  luli'ituti  f;-jtuttiimUult  Iv  <iu  mt.   IUmw  VH,  £•-  10  Cftl.  82. 

tiidlUo,  ■j:i  C«l.  TTU. 

12 


CONSTITUTION  OF  THE  UNITED  STATES.  t 

senate  and  house  of  representatives,  open  all  the  certificates,  and  the  votes 
shall  then  be  counted.  The  person  having  the  greatest  numher  of  votes  shall 
be  the  president,  if  such  number  be  a  majority  of  the  whole  number  of  electors 
appointed;  and  if  there  be  more  than  one  who  have  such  majority,  and  have 
an  equal  number  of  votes,  then  the  house  of  representatives  shall  immediately 
choose  by  ballot  one  of  them  for  president;  and  if  no  person  have  a  majoiity, 
then  from  the  five  highest  on  the  list  the  said  house  shall  in  like  manner  choose 
the  president.  But  in  choosing  the  president,  the  votes  shall  be  taken  by 
states,  the  representation  from  each  state  having  one  vote;  a  quorum  for  this 
purpose  shall  consist  of  a  member  or  members  from  two  thirds  of  the  states, 
and  a  majority  of  all  the  states  shall  be  necessary  to  a  choice.  In  eveiy  case, 
after  the  choice  of  the  president,  the  person  having  the  greatest  nvimber  of 
votes  of  the  electors  shall  be  the  vice-president.  But  if  there  should  remain 
two  or  more  who  have  equal  votes,  the  senate  shall  choose  from  them  by  ballot 
the  vice-president,  p*" 

The  congress  may  determine  the  time  of  choosing  the  electors,  and  the  day 
on  which  they  shall  give  their  votes;  which  day  shall  be  the  same  throughout 
the  United  States. 

No  person  except  a  natural-born  citizen,  or  a  citizen  of  the  United  States  at 
the  time  of  the  adoption  of  this  constitution,  shall  be  eligible  to  the  ofSce  of 
president;  neither  shall  any  person  be  eligible  to  that  office  who  shall  not  have 
attained  to  the  age  of  thirty-five  years,  and  been  fourteen  years  a  resident  within 
the  United  States. 

In  case  of  the  removal  of  the  president  from  office,  or  of  his  death,  resignation, 
or  inability  to  discharge  the  powers  and  duties  of  the  said  office,  the  same  shall 
devolve  on  the  vice-president,  and  the  congress  may  by  law  provide  for  the 
case  of  removal,  death,  resignation,  or  inability,  both  of  the  president  and  vice- 
president,  declaring  what  officer  shall  then  act  as  jiresident,  and  such  officer 
shall  act  accordingly,  until  the  disability  be  removed,  or  a  president  shall  be 
elected. 

The  president  shall,  at  stated  times,  receive  for  his  sei'vices,  a  compensation, 
which  shall  neither  be  increased  nor  diminished  during  the  period  for  which  he 
shall  have  been  elected,  and  he  shall  not  receive  within  that  period  any  other 
emolument  from  the  United  States,  or  any  of  them. 

Before  he  enter  on  the  execution  of  his  office,  he  shall  take  the  following  oath 
or  affirmation: — "I  do  solemnly  swear  (or  affirm)  that  I  will  faithfully  execute 
the  office  of  president  of  the  United  States,  and  will,  to  the  best  of  my  ability, 
preserve,  protect  and  defend  the  constitution  of  the  United  States." 
Foioers  and  duties  of  president. 

Sec.  2.  The  president  shall  be  commander-in-chief  of  the  army  and  navy  of 
the  United  States,  and  of  the  militia  of  the  several  states,  when  called  into  the 
actual  service  of  the  United  States;  he  may  require  the  oj)inion,  in  writing,  of 
the  principal  officer  in  each  of  the  executive  departments,  upon  any  subject 
relating  to  the  duties  of  their  respective  offices,  and  he  shall  have  power  to 
grant  reprieves  and  pardon  for  offenses  against  the  United  States,  except  in 
cases  of  impeachment. 

He  shall  have  power,  by  and  with  the  advice  and  consent  of  the  senate,  to 
make  treaties,^""  provided  two  thirds  of  the  senators  present  concur;  and  he 
shall  nominate,  and  by  and  with  the  advice  and  consent  of  the  senate,  shall 

(a)  This  paraRTaph  is  superseded  by  Article  XII.  of  It  is  not  -within  the  constitutional  power  of  the  state 

the  Amendments  to  the  Constitution,  post,  19.  legislature  to  confer  jurisdiction  upon  federal  courte 

(&)   A  treaty  made  by  the  United  States,  removing  or  prescribe  the  means  or  mode  of  its  exercise.    Greely 

the  disability  of  aliens  to  inherit,  is  valid  and  within  vs.  Townsend,  25  Cal.  C04. 
the  intent  of  the  constitution.  People  vs.  Gerke,  5  Cal. 
381. 

13 


T-vi  CONSTITUTION  OF  THE  UNITED  STATES. 

appoint  ambassadors,  other  public  ministers  and  consuls,  jutlges  of  tlie  supreme 
court,  anil  all  other  officers  of  the  United  States,  whose  appointments  are  not 
herein  otherwise  provided  for,  and  which  shall  be  established  by  law;  but  the 
oonjjress  may  by  law  vest  the  appointment  of  such  inferior  officers,  as  they 
think  proper,  in  the  president  alone,  in  the  courts  of  law,  or  in  the  heads  of 
departments. 

The  pre^dent  shall  have  power  to  fill  up  all  vacancies  that  may  happen 
during  the  recess  of  the  senate,  by  granting  commissions  which  shall  expire  at 
the  end  of  their  next  session. 
.l/'V«>7jj/tv — Calling  together  and  adjourning  congress,  etc. 

Sec.  3.  He  shall  from  time  to  time  give  to  the  congress  information  of  the 
6ti»t6  of  the  Union,  and  recommendlo  their/consideration  such  measures  as  he 
shall  judge  neces.sary  and  expedient;  he  may,  on  extraordinary  occasions, 
convene  l.>oth  houses,  or  either  of  them,  and  in  case  of  disagreement  between 
them,  with  respect  to  the  time  of  adjournment,  he  may  adjourn  them  to  such 
time  as  he  shall  think  proper;  he  shall  receive  ambassadors  and  other  public 
ministers;  he  shall  take  care  that  the  laws  be  faithfully  executed,  and  shall 
commission  all  the  officers  of  the  United  States. 
Hemoval  o/officos  on  impeachments. 

Sec.  4.  The  president,  vice-president  and  all  civil  officers  of  the  United 
Staif^,  shall  be  removed  from  office  on*  impeachment  for,  and  conviction  of, 
treason,  briber}',  or  other  high  crimes  and  misdemeanors. 

ARTICLE  III. 
vi.  Judicial  department. 

Section  1.  The  judicial  power  of  the  United  States  shall  be  vested  in  one 
supreme  court,  and  in  such  inferior  courts  as  the  congress  ma^'  from  time  to 
time  ordain  and  e.stablish.'"^  The  judges,  both  of  the  supreme  and  inferior 
courts,  shall  hold  their  offices  during  good  behavior,  and  shall,  at  stated  times, 
receive  for  their  services  a  compensation  which  shall  not  be  dii^uished  during 
their  continuance  in  office. 
Judirial  power. 

Sec.  2.  The  judicial  power  shall  extend  to  all  cases,  in  law  and  equity, 
arising  under  this  constitution,  the  laws  of  the  United  States,  and  treaties 
made,  or  which  shall  be  made,  under  their  authority; — to  all  cases  afi'ectiug 
axubassa<l«>rs,  other  public  ministers,  and  consuls; — to  all  cases  of  admiralty 
and  maritime  jurisdiction;"'*— to  controversies  to  which  the  United  States  shall 
lie  a  party; — to  controversies  between  two  or  more  states; — between  a  state  and 
^^H^  f  another  state; — between  citizens  (jf  difToront  states; — between  citizens 
^Bp  M«  state;  elaiijiing  lands  under  grants  of  diflerent  states,  and  between  a 
hiafT^  or  the  citizens  thereof,  and  foreign  states,  citizens  or  subjects.*"^ 

lu  all  cjuiCK  afletting  andmssadors,  other  public  ministers  and  consuls,  and 
thoHe  iu  which  a  state  shall  be  party,  the  supreme  court  shall  have  original 
j  ■  "•     I"  'dl  tlie  other  cases  before  mentioned,  the  Kupreme  court  shall 

1  .  .  ■  date  juriwliction,  both  as  to  law  and  fact,  with  such  exceptions,  and 

under  such  reguhitic^ns  as  the  congress  shall  make."'* 

The  Irial  of  all  crimes,  except  in  cases  of  impeachment,  shall  be  by  jury;  and 
HUch  trial  shall  be  hehl  iu  the  state  where  the  said  crimes  shall  have  been  corn- 
ed) C^AtirnM  raMiot  confrr  ;urt>MlrU<m  np<>n  rn-latr         (c)  Tlic  riilatinnK  of  tlie  federal  nixl  tttiite  courts  to 

.  .  .  .<       I  .  .  -rf.   I  .     ,.   ™    •  #-1     ••■••h  other  (llwiiHFed.    JolitiHon  VH.  Gordon,  4  Cal.  3(a- 

MliiiHon     r<TrJn  VH.  Coc.v.r,  n  ChI   17.1. 

.11  mIiiiJ.         (W)    The  Riiiirciiif  court  cannot  exercise  appellate 
'        no     JurltKllitton  ovf^r  ftate  courts.    Johnson  vs.   Oordon, 
I  •  -nl     4  Cal.  308;  but  Bce  Ferns  vs.  Coover,  11  Cal.  170. 

'  .ir- 

u 


CONSTITUTION  OF  THE  UNITED  STATES.  vi-vii 

mitted;  but  when  not  committed  witliiu  any  state,  the  trial  shall  bo  at  such 
place  or  places  as  the  congress  may  by  ^a^v  have  directed.  ""    ^ 
Treason — Evidence — Punishmenf. 

Sec.  3.  Treason  against  the  United  States  sQall  consist  onh'  in  levying  war 
against  them,  or  in  adhering,  to  tlueir  enemies,  ^ving  them  aid  and  comfort. 
No  person  shall  be  convicted  of  treason  unless  on  the  testimony  of  two  wit- 
nesses to  the  same  overt  act,  or  on  confession  inVp^en  court. 

The  cdliga-ess  shall  have  power  to  declare  the  iK^ishmeut  of  treason,  but  no 
attainder  of  treasoil- shall  work  conniption  of  bloocl,  or  iorfeiturp,  except  during 
■  tJieJife  of  ^  the  person  attainted. 

Aiite:LElv. 

vii.  Acts  and  records  of  states  and  their  proof. 

Section  1.  Full  faith  awd  credit  shall  be  given  in  each  state  to  the  public  acts, 
records,  and  judicial  proceedings  of  every  other  state.     And  the  congress  may 
by  general  laws  prescribe  the  manner  in  which  such  acts,  records  and  proceed- 
ings shall  be  proved,  and  the  effect  thereof.^"" 
Privileges  of  citizens.  -<( 

Sec.  2.  The  citizens  of  each  state  shall  be^i^ntitled  to  all.  privileges  and  im- 
munities of  citizens  in  the  several  stat^.^**^ 

A  person  charged  in  any  state  with  treason,  felony,  or  other  crime,  who  shall 
flee  from  justice,  and  be  found  in  another  state,  shall,  on  demand  of  the  exec- 
utive authority  of  the  state^rom  which  he  fled,  be  delivered  up,  to  be  removed 
to  the  state  having  jurisdiction  of  the  crime. '°^ 

No  person  held  to  service  or  labor  in  one  state,  under  the  lasys  thereof,  escap- 
ing into   another,  shall,  in  consequence  of  any  law  or  regulation  therein,  be 
discharged  from  such  service  or  labor,  but  shall-be  delivered  up  on  claim  of  the 
I^Darty  to  whom  such  service  or  labor  may  be  due.'*^' 

New  states — Territories. 

Sec.  3.  New  states  may  be  admitted  by  the  congress  into  this  Union;  but  no 

new  state  shall  be  formed  or  erected  within  the  jurisdiction  of  any  other  state; 

nor  any  state  be  formed  by  the  junction  of  two  or  more  states,  or  parts  of 

states,  without  the  consent  of  the  legislatures  of  the  states  concerned  as  well 

^   as  of  the  congress. 

^ilie  congress  shall  have  jjower  to  dispose  of  and  make  all  needful  rules  and 
regulations  respecting  the  territory  or  other  property  belonging  to  the  United 
States;  and  nothing  in  this  constitution  shall  be  so  construed  as  to  prejudice 
any  claims  of  the  United  States,  or  of  any  particular  state.  '^^  ^^_ 

Republican  form  of  government.  ^|H 

Sec  4.  The  United  States  shall  guarantee  to  every  state  in  this  Union  a 
republican  form  of  government,  and  shall  protect  each  of  them  against  inva- 
sion; and  on  application  of  the  legislature,  or  of  the  executive  (when  the  legis- 
lature cannot  be  convened),  against  domestic  violence. 

(a)  The  record  of  a  judgment  in  another  state  cerfi-  a  surrender;  but  the  executive  having  acted,  its  dis- 

fied  in  conformity  with  the  act  of  congress,  is  admis-  cretion  may  be  inquired  into  by  the  courts.   Ex  parte 

Bible  in  evidence  in  this  state;  but  the  legislature  of  P.  B.  Manchester,  5  Cal.237. 

this  state  has  power  to  require  a  less  amount  of  i^roof .  A  law  authorizing  the  arrest  of  a  fugitive  from  jns- 

Parke  vs.  Williams,  7  Cal.  247.  tice  before  a  demand  for  his  surrender  has  been  made, 

(6)  The  revenue  act  of  May  18.  185.3  (p^o^•iding  for  and  his  detention  for  a  reasonable  time  to  afford  an 

tax  on  consigned  goods) ,  dots  not  violate  this  clause,  opportunity  for  such  demand,  is  not  in  conflict  with 

People  vs.  Coleman,  i  Cal.  46.  this  section.    Ex  parte  Cubreth.  49  Cal.  436. 

The  right  of  transit  through  the  state  with  slaves,  (rf)  The  right  of  a  slaveholder  over  slaves  brought 

what  will  save  a  forfeitiu-e,  and  "comity,"  discussed,  to  this  state  before  the  adoption  of  the  constitution, 

Ex  parte  Archy,  7  Cal.  Ii7.  and  the  police  powers  of  the  state  over  fugitive  slaves, 

(c)  Our  courts  cannot  control  the  executive  disere-  discussed.  Ex  parte  Perkins,  2  Cal.  424. 
tion  in  surrendering  fugitives  from  justice,  nor  compel 

15 


viii-ix  CONSTITUTION  OF  THE  UNITED  STATES. 

ARTICLE  V. 

viii.  Amendments. 

The  congress,  whenever  two  thirds  of  both  houses  shall  deem  it  necessary, 
shall  propose  amendments  to  this  constitution,  or,  on  the  application  of  the 
lt'j,'i.slatures  of  two  thirds  of  the  several  states,  shall  call  a  convention  for  pro- 
posing amendments,  which,  in  either  case,  shall  be  valid  to  all  intents  and 
purposes,  as  part  of  this  constitution,  when  ratified  by  the  legislatures  of  three 
fourths  of  tlie  seveml  states,  or  by  conventions  in  three  fourths  thereof,  as  the 
one  or  the  other  mode  of  ratification  may  be  proposed  by  the  congress;  pro- 
vided, that  no  amendment  which  may  be  made  prior  to  the  year  one  thousand 
eight  hundred  and  eight  shall  in  any  manner  affect  the  first  and  fourth  clauses 
in  the  ninth  section  of  the  first  article;  and  that  no  state,  without  its  consent, 
shall  be  depiived  of  its  equal  suffrage  in  the  senate. 

ARTICLE  VI. 

ix.  Debts — Supreme  laiv  of  land — No  religious  test. 

A\\  debts  contracted  and  engagements  entered  into,  before  the  adoj^tion  of 
this  constitution,  shall  be  as  valid  against  the  United  States  under  this  con- 
stitution, as  under  the  confederation. 

This  constitution,  and  the  laws  of  the  United  States  which  shall  be  made  in 
l)ursuance  thereof;  and  all  treaties  made,  or  w^hich  shall  be  made,  under  the 
authority  of  the  United  States,  shall  be  the  sui:)reme  law  of  the  land;  and  the 
judges  in  ever^-  state  shall  he  bound  thereby,  anything  in  the  constitution  or 
laws  of  any  state  to  the  contrary  notwithstanding. 

The  senators  and  representatives  before  mentioned,  and  tlie  members  of  the 
several  state  legislatures,  and  all  executive  and  judicial  officers,  both  of  the 
Uuitetl  States  and  of  the  several  states,  shall  be  bound  by  oath  or  affirmation 
to  Kujiport  this  constitution;  but  no  religious  test  shall  ever  be  requii-ed  as  a 
ciualifjcation  to  any  office  or  public  trust  under  the  United  States. 

ARTICLE  VII. 

RATIFICATION    OF   CONSTITUTION. 

J,itti'(-  ■ihou. 

The  ratification  of  the  conventions  of  nine  states,  shall  be  sufficient  for  the 
estabUhhujeut  of  this  constitution  between  the  states  so  ratifying  the  same. 

Done  in  convention,  l)y  tlie  unanimous  consent  of  the  states  present,  the 
M'vent^enth  day  of  September,  in  the  year  of  our  Lord  one  thousand  seven 
lnindre<l  and  eighty-seven,  and  of  the  independence  of  the  United  States  of 
Amcri.-a  the  twelfth.  In  witness  whereof,  we  have  hereunto  subscribed  our 
imtm-H. 

Geo.  Washington, 
President,  and  Deputy  from  Virginia. 


M', 


CONSTITUTION  OF  THE  UNITED  STATES. 


IX 


New  Hampshire. 
John  Langdon, 
Nicholas  Oilman. 

Massachusetts. 
Nathaniel  Goeham, 
Eupus  King. 

Connedicrd. 
William  Samuel  Johnson, 
Roger  Sheeman. 


Delaware. 
George  Eead, 
Gunning  Bedford,  Jr., 
John  Dickinson, 
Richard  Bassett, 
Jacob  Broom. 

Maryland. 
James  M'Henry, 
Daniel,  of  St.  The.  Jenifer, 
Daniel  Carroll. 


NexD  York. 
Alexander  Hamilton, 

New  Jersey. 
William  Livingston, 
I^AViD  Brearley, 
William  Paterson, 
Jonathan  Dayton. 


Virginia. 
John  Blair, 
James  Madison,  Jr. 

North  Carolina. 
William  Blount, 
Richard  Dobbs  Spaight, 
Hugh  Williamson, 


Pennsylvania. 
Benjamin  Franklin, 
Thomas  Mifflin, 
Robert  Morris, 
George  Clymer, 
Thomas  Fitzsimons, 
Jared  Ingersoll, 
James  Wilson, 
Gouverneur  Morris. 


South  Carolina. 
John  Eutledge, 
Charles  C.  Pinckney, 
Charles  Pinckney, 
Pierce  Butler. 

Georgia. 
William  Few, 
Abraham  Baldwin. 


Attest , 


William  Jackson,  Secretary. 


17 


CONSTITUTION  OF  THE  UNITED  STATES. 


^mcuDmcnb 


TO  THE  COXSTITUTIOX  OF  THE  UXITED    STATES,  KATII'IED  ACCORDING  TO  THE  PBO^aSIONS  OF 
THE  FIFTH  AKTICLE  OF  THE  FOREGOING  CONSTITUTION. 


ARTICLE  I. 
X.  Free  exercise  (>f  religion,  etc. 

CuXGUESs  sball  make  no  law  resi^ecting  an  estaLlislinient  of  religion,  or  pro- 
hibiting the  free  exercise  thereof;  or  abridging  the  freedom  of  speech  or  of  the 
press;  or  the  right  of  the  people  peaceably  to  assemble,  and  to  petition  the 
goveruujeut  for  a  redress  of  grievances.  {Amendment,  2:>ropo»ed  25th  September, 
178U;  ratified  loth  December,  1701. 

ARTICLE  II. 
Right  to  bear  arms. 

A  well-regulated  militia  being  necessaiy  to  the  security  of  a  free  state,  the 
right  of  the  people  to  keep  and  bear  arms  shTill  not  be  infringed.  [Amendmeni, 
jjrujMj^ed  2oth  September,  1789;  ratified  loth  December,  1791. 


ARTICLE  III. 
No  soldier  to  be  billeted,  etc. 

No  soldier  shall,  in  time  of  peace,  be  quartered  in  any  house  without  the  con- 
seut  of  the  owner,  nor  in  time  of  war,  but  in  a  manner  to  be  prescribed  by  law. 
[Amendment,  proposed  25th  September,  1789;  ratified  15l]i  December,  1791, 

ARTICLE  IV. 

Uurcaisonable  searches  jrrohibilcd. 

The  right  of  the  people  to  be  secure  in  their  persons,  houses,  papers,  and 
fflecu,  uguiuHt  unreasonable  searches  and  seizures,  shall  not  be  \iulated,  and 
no  wurrunth  hhall  issue,  but  upon  probable  cause,  supported  by  oath  or  aftirma- 
tion,  and  particularly  describing  the  i)lace  to  be  searched,  and  the  persons  or 
things  to  bo  seized.  [^Amendment,  j/ropused  25th  September,  1789;  ratified  15th 
December,  17U1, 

ARTICLE  V. 
xi.   Criminal  prfpcfrdir.gn. 

No  peiTjon  bhall  be  held  to  answer  fur  a  capital,  or  otherwise  infamous  cvime, 
uuIchH  on  a  preHcntmcnt  or  indictment  of  a  grand  jury,  except  in  cases  arising 
in  the  land  or  naval  forccH,  or  in  tlie  militia,  when  in  actual  service  in  time  of 
war  or  i»iiblic  danger;  nor  shall  any  jxrKon  be  subject  for  the  same  offense  to 
be  twice  put  in  jeopardy  of  life  or  liftilt;  injr  shall  l>c  compelled  in  any  criminal 
caise  to  be  a  wituehs  against  himself,  nor  be  de^jrived  of  life,  liberty,  or  prop- 
erty, without  due  proccHM  of  law;  nor  shall  private  property  be  taken  forjMiblic 
use,  without  just  compensation.  {Amendment,  proposed  25(]i  September,  1789; 
raiifi'd  15th  December,  1791, 

18 


CONSTITUTION  OF  THE  UNITED  STATES.  xi-xii 

ARTICLE  VI. 

Mode  of  trial. 

In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right  to  a  speedy  and 
public  trial,  by  an  impartial  juiy  of  the  state  and  district  wherein  the  crime 
shall  have  been  committed,  which  district  shall  have  been  previously  ascertained 
by  law,  and  to  be  informed  of  the  nature  and  cause  of  the  accusation;  to  be 
confronted  with  the  witnesses  against  him;  to  have  compulsory  process  for  obtain- 
ing witnesses  in  his  favor,  and  to  have  the  assistance  of  counsel  for  his  defense. 
{Amendment^  l^'^'oposed  2olh  September ,  17S9j  ratified  l^th  December,  1791. 

ARTICLE  VII. 

HigJds  of  trial  by  jury. 

In  suits  at  common  law,  where  the  value  in  controversy  shall  exceed  twenty 
dollars,  the  right  of  trial  by  jury  shall  be  preserved,  and  no  fact  tried  by  a  jury 
shall  be  otherwise  re-examined  in  any  court  of  the  United  States,  than  accord- 
ing to  the  rules  of  the  common  law.  [Amendment,  proposed  25th  September, 
17«9;  ratified  15th  December,  1791. 

ARTICLE  VIII, 

Bails — Fines. 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed,  nor  cruel 
and  unusual  punishments  inflicted.  [Amendment,  j^roposed  25ili  September ,  1789; 
ratified  15th  December,  1791, 

ARTICLE  IX. 
Eights  not  enumeraied^ 

The  enumeration  in  the  constitution,  of  certain  rights,  shall  not  be  construed 
to  deny  or  disparage  others  retained  by  the  people,  [Amendment,  proposed  25th 
September,  1789;  I'alijied  15th  December,  1791. 

ARTICLE  X. 
xii.  Potcers  reserved. 

The  powers  not  delegated  to  the  United  States  by  the  constitution,  nor  pro- 
hibited by  it  to  the  states,  are  reserved  to  these  states  respectively,  or  to  the 
people,    [Amendment,  proposed  25th  September,  1789;  ratified  15th  December,  1791. 

ARTICLE  XL 

Limitation  of  judicial  power. 

The  judicial  power  of  the  United  States  shall  not  be  construed  to  extend  to 
any  suit  in  law  or  equity  commenced  or  prosecuted  against  one  of  the  United 
States  by  citizens  of  another  state,  or  by  citizens  or  subjects  of  any  foreign  state. 
[Amendment,  pi^oposed  5th  March,  1794;  raiified  8th  January,  1798, 

ARTICLE  XII. 

Election  of  president  and  vice-president. 

The  electors  shall  meet  in  their  respective  states,  and  vote  by  ballot  for 
president  and  vice-president,  one  of  whom,  at  least,  shall  not  be  an  inhabitant 
of  the  same  state  with  themselves;  thej^  shall  name  in  their  ballots  the  person 
voted  for  as  president,  and  in  distinct  ballots  the  person  voted  for  as  vice- 
president,  and  they  shall  make  distinct  lists  of  all  persons  voted  for  as  presi- 
dent, and  of  all  persons  voted  for  as  vice-president,  and  of  the  number  of  votes 
for  each,  which  lists  they  shall  sign  and  certify,  and  transmit  sealed  to  the  seat 
of  the  government  of  the  United  States,  directed  to  the  president  of  the  senate; — 
the  president  of  the  senate  shall,  in  presence  of  the  senate  and  house  of  rep- 

19 


xii-xiii  CONSTITUTION  OF  THE  UNITED  STATES, 

resentiitives,  open  all  the  certificates,  and  the  votes  shall  then  be  conntecT; — 
the  person  havin^r  the  p^eatest  nuuibev  of  Tote.s  for  president,  shall  be  the  presi- 
dent, if  such  number  be  a  majority  of  the  whole  number  of  electors  appointed;: 
and  if  no  person  have  such  majority,  then  from  the  persons  having  the  highest 
uiimbei-s,  not  exceeding  three  on  the  list  of  those  voted  for  as  president,  the 
house  of  representatives  shall  choose  immediately,  by  ballot,  the  president. 
But  in  choosing  the  president,  the  votes  shall  be  taken  by  states,  the  repre- 
sentation from  each  state  having  one  vote;  a  quorum  foi-  this  purpose  shall 
consist  of  a  member  or  members  from  two  thirds  of  the  states,  and  a  majority 
of  all  the  states  shall  bo  necessaiy  to  a  choice.  And  if  the  hotrse  of  representa- 
tives shall  not  choose  a  president  whenever  the  right  of  choice  shall  devolve 
upon  them,  before  the  fourth  day  of  March  next  following,  then  the  vice- 
president  shall  act  as  president,  as  in  the  case  of  the  death  or  other  constitu- 
tional disability  of  the  president. 

The  i>erson  having  the  greatest  number  of  votes  as  vice-president  shall  be  the 
vice-president,  if  such  number  be  a  majority  of  the  whole  number  of  elector* 
apjtointed;  and  if  no  person  have  a  majority,  then  from  the  two  highest  numbers- 
tin  the  list,  the  senate  shall  choose  the  vice-president;  a  quorum  for  the  piw- 
pose  shall  consist  of  two  thirds  of  the  whole  number  of  senators,  and  a  majority 
of  the  whole  number  shall  be  necessary  to  a  choice. 

But  no  person  constitutional!}'  ineligible  to  the  office  of  president  shall  be 
eligible  to  that  of  vice-president  of  the  United  States.  [Amendment,  jyroposed 
12//i  December,  1803;  ratified  TAli  September ,  1804. 

ARTICLE  XIII. 
xiii.  Slavenj  prohihiled. 

Sectios  1.  Neither  slaveiy  nor  involuntary  servitude,  except  as  a  punishment^ 
for  crime  whereof  the  party  shall  have  been  duly  convicted,  shall  exist  within 
the  United  States  or  any  i)lace  suljject  to  their  jurisdiction. 

Sec.  2.  Congress  shall  have  power  to  enforce  this  article  by  appropriate  leg- 
islation. [Amendment,  proposed  Isl  Februanj,  1865;  declared  ratified  ISih  Decem- 
ber, 18G5. 

ARTICLE  XIV. 

Cilizt'tty,  who  are — Riffhlii  of  citizensJtip. 

ShXTioN  1.  All  pei-sons  bom  or  naturalized  in  the  United  States  and  subject 
to  the  jurisdiction  thereof  are  citizens  of  the  United  States  and  of  the  state 
wherein  they  reside.  No  state  shall  make  or  enforce  any  law  which  shall. 
iiiiiidge  the  jtrivilegos  or  immunities  of  citizens  of  the  United  States;  nor  shall 
any  Ktiit<;  deprive  any  person  of  life,  liberty  or  property  without  due  process  of 
law,  «'•••  •!'  "v  to  tiny  person  within  its  jurisdiction  the  equal  protection  of  the 

luWK." 

Aj>j>oriionment  of  rrprenndnlion . 

Sec.  2.  KepreHentatives  slmll  be  rqipovtionod  among  the  several  states  accord- 
inj?  to  their  reK])ec-tive  numbers,  counting  the  whole  number  (jf  persons  in  each 
»*■'  '  not  taxed.     But  when  the  right  to  vote  at  any  election 

'"'       '   •  -  f<^»i"  president  and  vice-president  of  the  United  States, 

repreocntatives  in  congress,  the  executive  and  judicial  officers  of  a  state,  or  the 

:■  -    X'TT^' •"^'■^^  ynUiV.  f.rllS   ft   .tf.|.    f  -  „,    ,l.,]y.  I'.yt), 


•1  by  all  iTDMiDi  •lilic.  U»rd  v«.  H.x>a, 


r.y  till-  fiinrtpiiith  aiufndment  the  prlvilcgCR  and  im- 
Tinuiitli-H  ./f  ritiziiiH  of  (li<;  United  States,  ihenby  eon- 
t<rri-d.  arc  Knaruiiteed  and  protected  in  every  state  be- 
\oi,j  111,.  .i],<Tiition  of  Ftato  lawn;  lint  the  power  of  a 
tit.tle  ft)  dt-tc-rniine  tlie  clntiK  of  inhabitants  who  may 
voti- wlUilii  li.  r  liniitu  is  not  curtailed  by  the  amend- 
meut.   \  an  VHlkinburt;  vh.  Brown,  ii  Cal.  43. 

20 


C0:NSTITUTI0N  of  the  united  states.  xiii 

11161111)618  of  the  legislature  thereof,  is  denied  to  any  of  the  male  inhabitants  of 
Buch  state,  being-  twenty-one  years  of  age  and  citizens  of  the  United  States,  or 
in  any  way  abridged,  except  for  participation  in  rebellion  or  other  crime,  the 
basis  of  representation  therein  shall  be  reduced  in  the  proportion  which  the 
number  of  such  male  citizens  shall  bear  to  the  whole  number  of  male  citizens 
twenty-one  years  of  age  in  such  state. 

Certain  persons  dmiualifu'd  from  holding  office. 

Sec.  3.  N<)  person  shall  be  a  senator  or  representative  in  congress,  or  elector 
of  president  and  vice-president,  or  hold  any  oflBce,  civil  or  military,  under  the 
United  States  or  under  any  state,  who,  having  previously  taken  an  oath  as  a 
member  of  congress,  or  as  an  officer  of  the  United  States,  or  as  a  member  of 
anj^  state  legislature,  or  as  an  executive  or  judicial  officer  of  any  state,  to  sup- 
port the  constitution  of  the  United  States,  shall  have  engaged  in  insurrection 
■or  rebelHou  against  the  same,  or  given  aid  or  comfort  to  the  enemies  thereof. 
But  congress  may,  by  a  vote  of  two  thirds  of  each  house,  remove  such  disability. 

Payment  of  piibUc  debt  not  to  he  questioned — Rebel  debts  not  to  he  assuvied. 

Sec.  4.  The  validity  of  the  public  debt  of  the  United  States,  authorized  by 
law,  including  debts  inciu-red  for  payment  of  pensions  and  bounties  for  ser- 
vices in  suppressing  insurrection  or  rebellion,  shall  not  be  c^uestioned.  But 
neither  the  United  States  nor  any  state  shall  assume  or  pay  any  debt  or  obliga- 
tion inciuTcd  in  aid  of  iaisurrection  or  rebellion  against  the  United  States,  or 
any  claim  for  the  loss  or  emancipation  of  any  slave;  but  all  such  debts,  obliga- 
tions, and  claims  shall  be  held  illegal  and  void. 

Sec.  5.  The  congress  shall  have  power  to  enforce^  by  api^roj^riate  legislation, 
the  provisions  of  this  article.  [Amendment  proposed  16lh  June,  IStiG;  declared 
ratified  28lh  July,  1868. 

ARTICLE  XV. 

Rigid  of  all  citizens  to  vote. 

Section  L  The  right  of  citizens  of  the  United  States  to  vote  shall  not  be 
denied  or  abridged  by  the  United  States  or  by  any  state,  on  account  of  race, 
«olor,  or  previous  condition  of  servitude.'^''' 

Sec.  2.  The  congress  shall  have  power  to  enforce  this  ai-ticle  by  ajDpropriate 
legislation.  [Amendment,  proposed  21th  February,  1869;  declared  ratified  'SOUt 
March,  1870. 

(a)  The  fifteenth  sniendment  took  away  the  authority  condition  of  seiritude;  bntthe  power  of  exclusion  upon 
of  the  state  to  diseriniiuate  against  citizens  of  the  Uui-  all  other  grounds,  including  that  of  sex,  remains  intact, 
ied  Siates  on  accouzLt  of  either  race,  color  or  ijrevious     Van  VaJkenburg  vs.  Brown,  iH  Cal.  4a. 


21 


uicalij  of  iinuc.  JricuD^ljip,  iimib  mb  Settlement, 

BETWEEN  THE  UNITED  STATES  OF  AMERICA  AND  THE 
MEXICAN  REPUBLIC. 

Dated  at  Guadaltipe  Hidalgo,  2d  February,  IS48. 
Ratijicd  h]f  the  President  U.  S.,  IGih  March,  1S4S. 
Exchanged  at  Qucretaro,  30th  May,  1S4S. 
Proclaimed  by  the  President  U.  S.,  4th  July,  I84S. 

BY  THE  PRESIDENT  OF  THE  UNITED  STATES  OF  AMERICA, 

3.  Pvoclamatioiu 

xiv.  "Whereas,  a  Treaty  of  Peace,  Friendsliij),  Limits  and  Settlement,  be- 
tween the  United  States  of  America  and  the  Mexican  Republic,  was  concluded 
and  si^^fncd  at  the  city  of  Guadalupe  Hidalgo,  on  the  second  day  of  Februaiy, 
one  thousand  eight  hundred  and  forty-eight,  which  treaty,  as  amended  by  the 
Kenate  of  the  United  States,  and  being  in  the  English  and  Spanish  languages, 
is  word  for  word  as  follows: — 

In  the  name  of  Almighty  God : — 

The  United  States  of  America  and  the  United  Mexican  States,  animated  by  a 
sincere  desire  to  put  an  end  to  the  calamities  of  the  war  which  unhappily  exists 
between  the  two  Republics,  and  to  establish  upon  a  solid  basis  relations  of 
peace  and  fiiendship,  which  shall  confer  reciprocal  benefits  upon  the  citizens  of 
both,  and  assure  the  concord,  harmony,  and  mutual  confidence,  wherein  the 
twi)  jjcojjle  should  live,  as  good  neighbors,  have  for  that  purpose  appointed 
their  respective  plenipotentiaries — that  is  to  say,  the  pi-csident  of  the  United 
States  has  appointed  Nicholas  P.  Trist,  a  citizen  of  the  United  States,  and  the 
jiresident  of  the  Mexican  Repulilic  has  appointed  Don  Luis  Gonzaga  Cuevas, 
Don  Bernardo  Couto,  and  Don  Miguel  Atristain,  citizens  of  the  said  Republic, 
wli<»,  after  a  reciprocal  couniiuuication  of  their  respective  full  powers,  have, 
undiT  the  ijrotection  of  Almighty  God,  the  author  of  peace,  an-anged,  agreed 
U])on,  and  signed  the  following 

TI;r.A'l  Y   OF   I'EACK.   FllIENDSIlll',  LIMITS   AND   SETTLEMENT,  BETAVEEN  THE 
r SITED  STATEB  OF  AMERICA  AND  THE  MEXICAN  KEPUBLIC. 

ARTICLE  I. 
Pi-are. 

There  sliall  lie  firm  and  universal  peace  between  the  United  States  of  America 
and  tlif  Mcxiran  It*  public,  and  between  tbeii*  respective  countries,  teiritories, 
riti(  s.  towns,  ami  jtcfijilr-,  uifliout  exception  of  places  or  persons. 

ARTICLE  II. 
StPtpPTHfion  of  IioxiilUii'x. 

Immediately  ui)on  tlie  signature  of  this  Treaty,  a  convention  shall  be  entered 

into  between  a  commissioner  or  commissioners  appointed  by  the  general-in-chief 

22 


TKEATY  OF  GUADALUPE  HIDALGO.  xiv 

of  the  forces  of  the  United  States,  and  such  as  may  be  appointed  by  the  Mexican 
government,  to  the  end  that  a  provisional  suspension  of  hostilities  shall  take 
place,  and  that,  in  the  places  occupied  by  the  said  f(n-ces,  cionstitutional  order 
may  be  re-established,  as  regards  the  j)olitical,  administrative,  and  jiidicial 
branches,  so  far  as  this  shall  be  permitted  by  the  cii-cumstances  of  military 
occupation. 

ARTICLE  III. 

Raising  blockades — Withdrawal  nf  (rooj>t<,  etc. 

Immediately  upon  the  ratification  of  the  present  Treaty  by  the  government  of 
the  United  States,  orders  shall  be  transmitted  to  the  commanders  of  their  land 
and  naval  forces,  requiring  the  latter  (pro%'ided  this  Treaty  shall  then  have 
been  ratified  hj  the  government  of  the  Mexican  Republic,  and  the  ratifications 
exchanged)  immediately  to  desist  from  blockading  any  Mexican  ports;  ;iud 
requiring  the  former  (under  the  same  condition)  to  commence,  at  the  earliest 
moment  practicable,  withdrawing  all  troops  of  the  United  States  then  in  the 
interior  of  the  Mexican  Republic,  to  jioints  that  shall  be  selected  by  common 
agreement,  at  a  distance  from  the  seaports  not  exceeding  thirty  leagues;  and 
such  evacuation  of  the  interior  of  the  Republic  shall  be  completed  Avitli  the 
least  possible  delay;  the  Mexican  government  herebj^  binding  itself  to  afford 
eveiy  facility  in  its  power  for  rendering  the  same  convenient  to  the  troops,  on 
their  march  and  in  their  new  positions,  and  for  promoting  a  good  understanding 
between  them  and  the  inhabitants.  In  like  manner,  orders  shall  be  dispatched 
to  the  persons  in  charge  of  the  custom-houses  at  all  the  ports  occupied  by  the 
forces  of  the  United  States,  requiring  them  (under  the  same  condition)  immedi- 
ately to  deliver  possession  of  the  same  to  the  persons  authoi-ized  by  the  Mexican 
government  to  receive  it,  together  ^vith  all  bonds  and  evidences  of  debt  for 
duties  on  importations  and  on  exportations,  not  yet  fallen  due.  Moreover,  a 
faithful  and  exact  account  shall  be  made  out,  showing  the  entire  amount  of  all 
duties  on  imports  and  on  exports,  collected  at  such  custom-houses  or  elsewhere 
in  Mexico,  by  authority  of  the  United  States,  from  and  after  the  day  of  the  rat- 
ification of  this  Treaty  by  the  government  of  the  Mexican  Republic;  and  also 
an  account  of  the  cost  of  collection;  and  such  entire  amoimt,  deducting  only 
the  cost  of  collection,  shall  be  delivered  to  the  Mexican  government,  at  the  city 
of  Mexico,  within  three  months  after  the  exchange  of  ratifications. 

The  evacuation  of  the  capital  of  the  Mexican  Republic  b}'  the  troops  of  the 
United  States,  in  virtue  of  the  above  stipulation,  shall  be  completed  within  one 
month  after  the  orders  there  stipulated  for  shall  have  been  received  b}-  the 
commander  of  said  troops,  or  sooner,  if  i^ossible. 

ARTICLE  IV. 

Besforalion  of  castles,  forts,  prisoners,  etc. 

Immediatelj'^  after  the  exchange  of  ratifications  of  the  present  Treaty,  all 
castles,  forts,  territories,  places,  and  possessions,  which  have  been  taken  or 
occupied  b^'  the  forces  of  the  United  States  during  the  present  war  within  the 
limits  of  the  Mexican  Republic,  as  about  to  be  established  hy  the  following 
article,  shall  be  definitively  restored  to  the  said  republic,  together  with  all  the 
artillery,  arms,  apparatus  of  war,  munitions,  and  other  public  property,  whicli 
were  in  the  said  castles  and  forts  when  captured,  and  which  shall  remain  there 
at  the  time  when  this  Treaty  shall  be  duly  ratified  by  the  government  of  the 
Mexican  Republic.  To  this  end,  immediately  upon  the  signature  of  this  Treaty, 
orders  shall  be  dispatched  to  the  American  officers  commanding  such  castles 
and  forts,  securing  against  the  removal  or  destruction  of  any  such  artillery, 
arms,  apparatus  of  war,  munitions,   or  other  public  property.     The  city  of 

23 


XIV 


TREATY  OF  GU.IDALUPE  HIDALGO. 


Mexico,  within  the  inner  line  of  intrenclimeuts  suirounding  the  said  city,  is 
comiu-eh ended  in  the  above  stipulations  as  regards  the  restoration  of  artilleiy, 
apparatus  of  war,  etc. 

The  tiual  evacuation  of  the  territory  of  the  Mexican  Eepuhlic,  by  the  forces 
of  the  United  States,  shall  be  completed  in  three  months  from  the  said  exchange 
of  ratifications,  or  sooner,  if  possible:  the  Mexican  government  hereby  engaging, 
as  in  the  foregoing  article,  to  use  all  means  in  its  power  for  facilitating  such 
evaL-uatiun,  and  rendering  it  convenient  to  the  troops,  and  for  promoting  a 
good  understanding  between  them  and  the  inhabitants. 

If,  however,  the  ratification  of  this  Treaty  by  both  parties  should  not  take 
place  iu  time  to  allow  the  embarkation  of  the  troops  of  the  United  States  to  be 
completed  before  the  commencement  of  the  sickly  season,  at  the  Mexican  ports 
on  the  Gulf  of  Mexico,  iu  such  case  a  friendly  arrangement  shall  be  entered 
into  between  the  geueral-in-chief  of  the  said  troops  and  the  Mexican  govern- 
ment, whereby  healthy  and  otherwise  suitable  places,  at  a  distance  from  the 
ports  not  exceeding  thirty  leagues,  shall  be  designated  for  the  residence  of  such 
troojis  as  may  not  yet  have  embarked,  until  the  return  of  the  healthy  season. 
And  the  space  of  time  here  referred  to  as  comprehending  the  sickly  season, 
shall  be  understood  to  extend  from  the  first  day  of  May  to  the  first  day  of 
November. 

All  prisouei-s  of  war  taken  on  either  side,  on  land  or  on  sea,  shall  be  restored 
as  soon  as  practicable  after  the  exchange  of  ratifications  of  this  Treaty.  It  is 
also  agreed  that  if  any  Mexicans  should  now  be  held  as  captives  by  any  savage 
tribe  within  the  limits  of  the  United  States,  as  about  to  be  established  by  the 
following  article,  the  government  of  the  said  United  States  will  exact  the  release 
of  such  captives,  and  cause  them  to  be  restored  to  their  country. 

AETICLE  V. 
Boundary-line. 

The  boundary -line  between  the  two  republics  shall  commence  in  the  Gulf  of 
Mexico,  three  leagues  from  land,  opposite  the  mouth  of  the  Rio  Grande,  other- 
wise called  Rio  Bravo  del  Norte,  or  opposite  the  mouth  of  its  deepest  branch, 
if  it  should  have  more  than  one  branch  emptying  directly  into  the  sea;  from 
theuce  up  the  middle  of  that  river,  following  the  deepest  channel,  where  it  has 
more  than  one,  to  the  point  where  it  strikes  the  southern  boundary  of  New 
Mexico;  theuce,  westwardly,  along  the  whole  southern  boundary  of  New  Mexico 
(whi«-h  runs  north  of  the  town  called  Paso)  to  its  western  termination;  thence, 
ijoilhwurd,  along  the  western  line  of  New  Mexico,  until  it  intersects  the  first 
brunch  of  the  river  Gila  (or,  if  it  should  not  intersect  any  branch  of  that  river, 
then  to  the  point  on  the  said  line  nearest  to  such  branch,  and  thence  in  a  direct 
line  Ui  the  samiO;  theuce  down  the  middle  of  the  said  branch  and  of  the  said  river, 
until  it  eniplieh  int.j  the  Rio  Colorado;  thence  across  the  Rio  Colorado,  following 
llie  diviwiou  line;  between  Ujtper  and  Lower  California,  to  the  Pacific  Ocean. 

The  Bouthern  and  western  limits  of  New  Mexico,  mentioned  in  this  article, 
are  those  laid  down  in  the  maj)  entitled  "Map  of  the  United  IMexican  States,  as 
organizwl  and  defined  by  various  acts  of  the  Congi-ess  of  said  Republic,  and 
constructed  according  t<i  the  best  Authorities.  Revised  edition.  Published  at 
Now  York,  in  1«47,  by  J.  Disturnell."  Of  which  map  a  cojiy  is  added  to  this 
Treaty,  bearing  the  Kignatures  and  seals  of  the  undei-signed  plenipotentiaiies. 
And.  in  order  to  preclude  all  difliculty  in  tracing  ui)on  the  gi-ound  the  limit 
separating  l.'pper  from  Lower  California,  it  is  agreed  that  the  said  limit  shall 
consist  of  a  htraight  line  «lniwn  from  the  middle  of  the  Rio  Gila,  Avhere  it 
unitcH  with  tlie  Colorado,  to  a  point  on  the  coast  of  the  Pacific  Ocean  distant 
one  marine  league  due  Houth  of  the  southernmost  point  of  the  port  of  San 

24 


TEEATY  OF  GUADALUPE  HIDALGO.  xiv 

Diego,  according-  to  the  plan  of  said  port  made  in  the  year  1782  by  Don  Juan 
Pantoja,  second  sailing-master  of  the  Spanish  fleet,  and  published  at  ^Madrid  in 
the  year  1802,  in  the  atlas  to  the  voyage  of  the  schooners  Sutil  and  Mexicmm, 
of  which  plan  a  copy  is  hereunto  added,  signed  and  sealed  by  the  respective 
plenipotentiaries. 

In  order  to  designate  the  boundary-line  with  due  precision,  upon  authorita- 
tive maps,  and  to  establish  upon  the  ground  landmarks  which  shall  show  the 
limits  of  both  republics,  as  described  in  the  present  article,  the  two  govern- 
ments shall  each  appoint  a  commissioner  and  a  surveyor,  who,  before  the  expi- 
ration of  one  year  from  the  date  of  the  exchange  of  ratilications  of  this  treaty, 
shall  meet  at  the  port  of  San  Diego,  and  proceed  to  run  and  mark  the  said 
boundary  in  its  whole  course  to  the  mouth  of  the  Rio  Bravo  del  Norte.  They 
shall  keep  journals  and  make  out  plans  of  their  operations;  and  the  result 
agreed  upon  by  them  shall  be  deemed  a  part  of  this  treaty,  and  shall  have  the 
same  force  as  if  it  were  inserted  therein.  The  two  governments  will  amicably 
agree  regarding  what  may  be  necessary  to  these  persons,  and  also  as  to  their 
respective  egcorts,  should  such  be  necessary. 

The  boundary -line  established  by  this  article  shall  be  religiously  respected  by- 
each  of  the  two  republics,  and  no  change  shall  ever  be  made  therein,  except  by 
the  express  and  free  consent  of  both  nations,  lawfully  given  by  the  general 
government  of  each,  in  conformity  with  its  own  constitution. 

ARTICLE  VI. 

Navigation  of  Gulf  of  California  and  Colorado  Eiver. 

The  vessels  and  citizens  of  the  United  States  shall,  in  all  time,  have  a  free 
and  uninterrupted  passage  by  the  gulf  of  California,  and  by  the  river  Colorado 
below  its  confluence  with  the  Gila,  to  and  from  their  possessions  situated  north 
of  the  boundary-line  defined  in  the  preceding  article;  it  being  understood  that 
this  passage  is  to  be  by  na^dgatiug  the  gulf  of  California  and  the  river  Colo- 
rado, and  not  by  land,  without  the  express  consent  of  the  Mexican  government. 

If,  by  the  examinations  which  may  be  made,  it  should  be  ascertained  to  be 
practicable  and  advantageous  to  construct  a  road,  canal,  or  railway,  which 
should  in  w^hole  or  part  run  upon  the  river  Gila,  or  upon  its  right  or  its  left 
bank,  within  the  space  of  one  marine  league  from  either  margin  of  the  river, 
the  governments  of  both  republics  will  form  an  agreement  regarding  its  con- 
struction, in  order  that  it  may  serve  equally  for  the  use  and  advantage  of  both 
countries. 

ARTICLE  VII. 

Navigation  of  Gila  Eiver  and  Bio  Bravo  del  Norte. 

The  river  Gila,  and  the  part  of  the  Rio  Bravo  del  Norte  lying  below  the 
southern  boundary  of  New  Mexico,  being,  agreeably  to  the  Fifth  Article,  divided 
in  the  middle  between  the  two  republics,  the  navigation  of  the  Gila  and  of  the 
Bravo  below  said  boundary  shall  be  free  and  common  to  the  vessels  and  citi- 
zens of  both  countries;  and  neither  shall,  withovit  the  consent  of  the  other, 
construct  any  work  that  may  impede  or  interrupt,  in  whole  or  in  part,  the  exer- 
cise of  this  right;  not  even  for  the  purpose  of  favoring  new  methods  of  naviga- 
tion. Nor  shall  any  tax  or  contribution,  under  any  denomination  or  title,  be 
levied  upon  vessels  or  persons  navigating  the  same,  or  upon  merchandise  or 
effects  transported  thereon,  except  in  the  case  of  landing  upon  one  of  their 
shores.  If,  for  the  purjjose  of  making  the  said  rivers  navigable,  or  for  main- 
taining them  in  such  state,  it  should  be  necessary  or  advantageous  to  establish 
any  tax  or  contribution,  this  shall  not  be  done  without  the  consent  of  both 
governments. 

25 


XIV 


TREATY  OF  OrADALUPE  HIDALGO. 


The  stipulations  contained  in  the  present  article  shall  not  impair  the  teni- 
torial  rifj'hts  of  either  republic  within  its  established  limits. 

ARTICLE  VIII. 

Privileges  of  Mexicans — Citizeushi]) — Properly  of  non-resident  Mexicans. 

^lexicaus  now  established  in  territories  pre-viously  belonging  to  IVIexico,  and 
which  remain  for  the  future  within  the  limits  of  the  United  States,  as  defined 
by  the  present  treaty,  shall  be  free  to  continue  where  they  now  reside,  or  to 
remove  at  any  time  to  the  Mexican  Republic,  retaining  the  projDerty  which  they 
possess  in  the  said  territories,  or  disposing  thereof,  and  removing  the  proceeds 
wherever  they  please,  without  their  being  subjected,  on  this  account,  to  any 
contribution,  tax,  or  charge  whatever. 

Those  who  shall  prefer  to  remain  in  the  said  territories,  may  either  retain 
the  title  and  rights  of  Mexican  citizens,  or  acquire  those  of  citizens  of  the 
United  States.  But  they  shall  be  under  the  obligation  to  make  their  election 
within  one  year  from  the  date  of  the  exchange  of  ratifications  of  this  treaty; 
and  those  who  shall  remain  in  the  said  territories  after  the  expiration  of  that 
year,  without  having  declared  their  intention  to  retain  the  character  of 
Mexicans,'*'  shall  be  considered  to  have  elected  to  become  citizens  of  the 
United  States. 

In  the  said  territories,  property  of  every  kind,  now  belonging  to  Mexicans 
not  estabhshed  there,  shall  be  inviolably  res2:)ected.  The  present  owners,  the 
heirs  of  these,  and  all  Mexicans  who  may  hereafter  acquire  said  jiroperty  by 
contract,  shall  enjoy,  with  respect  to  it,  guarantees  equally  ample  as  if  the  same 
belonged  to  citizens  of  the  United  States.^"' 

ARTICLE  IX. 

Admi.<sinn  of  Mexicans  to  citizenship  in  the  United  States. 

The  Mexicans  who,  in  the  territories  aforesaid,  shall  not  preserve  the  char- 
acter  of  citizens  of  the  Mexican  Republic,  conformably  with  what  is  stij)ulated 
in  the  preceding  article,  shall  be  incoi^Dorated  into  the  Union  of  the  United 
State's,  and  be  admitted  at  tlie  proper  time  (to  be  judged  of  by  the  congress  of 
the  Liiited  States)  to  the  enjoyment  of  all  the  rights  of  citizens  of  the  United 
States  according  to  the  i^rincii^les  of  the  constitution;  and  in  the  meantime 
Hliall  be  maintained' and  protected  in  the  free  enjoyment  of  their  liberty  and 
ljro].fcrty,  and  secured  in  the  free  exercise  of  their  religion  without  restriction. 

ARTICLE  X. 

[Stricken  out.] 

ARTICLE  XL 

Jnifirf-inus  nf' ynvoffcs  into  Mexican  territory. 

ConKJ.lering  tliat  a  great  part  of  tlie  territories  which,  by  the  present  Treaty, 
arc  to  be  comprehended  for  tlic  fuiurc  witliiu  the  limits  of  the  United  States,  is 

(a)  Tbr*«i  who  h»T<>  (liylarf-d  mirh  intention  stlU  When  California  -was  ceded  to  the  United  States,  the 

rMn.Ki  «!(.  r>«  •!.■■!  for.-l«nerN.   I'toj.k-  vb.  Naglio.  1  Cal.  rl(,'htB  cf  property  "f  its  citizens  remained  unchanged. 

n.v  the  law  of  niitinnB  thoHc  rights  wen-  Kscrcd  and  in- 

'.f  land  by  the  Mpxlcin  Rovcmor,  violulil.:,  and  tli.'  (.bligiitioii  passed  to  tlic  now  g.ivern- 

■    ».v  fhr  ^mnK-n  «lth  the  further  nient  to  protect  and  tiiaintain  them.     The  term  prop- 

•    f'irinKhut  anliichinte  erty  as  applied  to  lands  embraces  all  titles  lef,'al  or 

'                                                             ri.lli'.l  St»ti-K.  »hii-h  efpiitiilde,   perfect  or   imperfect.      Teschemacher  vs. 

'                                                            "• '1  liy  the  Tn-aty  and  Tlionipsoii,  IH  Cal.  12. 

"f  "'Ih  trust  ia  Mexican  grants  are  leRal  titles,  and  most  of  them, 

■■     .                                                                    -y  l"  H"t  '•onipe-  wheii  nnitcd  to  possession,  are  such  equitable  titles  as 

,1  ►.<•  Fi-rrls  VB.  are  entitled  t    j.roiection  and  give  a  liKht  to  a  posses- 

i'>  ..1.   ..-..    ►..    »  ».     1...M    ihClarke,  IH  Cal.  gory  action.    I.atlirop  vs.  Mills,  1!)  Cal.  .'^pi:). 

,,,,.,.,,                 ...  The  provisions  ol  the  trc'aty  of  Guadalupe  Hidalgo 

vni.lifyof  Mniran  (rranU  of  Und  In  r»l|f.>nila  operat.-d   as  a  confirmation  in  preseidi  of  all  perfect 

■    „T"'.?"''U''^,"'"J''^" '•**"•   I'':Vander.  tltl.H  to   lands  in   California  held  under  Spanish  or 

f  1      •. ».  uaniw,  J  cai.  27,  47 ,  I- errla  v«.  Coovcr,  10  C«l.  Mexican  grantH.  Miuturn  vs.  Brewer,  21  Cal.  044. 

20 


TKEATY  OF  GUADALUPE  HIDALGO.  xiv 

now  occupied  by  savage  tribes,  who  will  hereafter  be  under  the  exclusive  con- 
trol of  the  government  of  the  United  States,  and  whose  incursions  within  the 
territory  of  Mexico  would  be  prejudicial  in  the  extreme,  it  is  solemnly  agreed 
that  all  such  incursions  shall  be  forcibly  restrained  by  the  Government  of  the 
United  States  whensoever  this  may  be  necessary;  and  that,  when  they  cannot 
be  prevented,  they  shall  be  punished  by  the  said  government,  and  satisfaction 
for  the  same  shall  be  exacted— all  in  the  same  way,  and  with  equal  diligence 
and  energy,  as  if  the  same  incursions  were  meditated  or  committed  within  its 
own  territory  against  its  own  citizens. 

It  shall  not  be  lawful,  under  any  pretext  whatever,  for  any  inhabitant  of  the 
United  States  to  purchase  or  acquire  any  Mexican,  or  any  foreigner  residing  in 
Mexico,  who  may  have  been  captured  by  Indians  inhabiting  the  territory  of 
either  of  the  two  republics,  nor  to  purchase  or  acquire  horses,  mules,  cattle,  or 
property  of  any  kind,  stolen  within  Mexican  territory  by  such  Indians. 

And  in  the  event  of  any  person  or  persons,  captured  within  Mexican  territory 
by  Indians,  being  carried  into  the  territory  of  the  United  States,  the  govern- 
ment of  the  latter  engages  and  binds  itself  in  the  most  solemn  manner,  so  soon 
as  it  shall  know  of  such  captives  being  within  its  territory,  and  shall  be  able  so 
to  do,  through  the  faithful  exercise  of  its  influence  and  power,  to  rescue  them, 
and  return  them  to  their  country,  or  deliver  them  to  the  agent  or  representative 
of  the  Mexican  government.  The  Mexican  authorities  will,  as  far  as  practi- 
cable, give  to  the  government  of  the  United  States  notice  of  such  captures;  and 
its  agent  shall  pay  the  expenses  incurred  in  the  maintenance  and  transmission 
of  the  rescued  captives;  who,  in  the  meantime,  shall  be  treated  with  the  utmost 
hospitality  by  the  American  authorities  at  the  place  where  they  may  be.  But  if 
the  government  of  the  United  States,  before  receiving  such  notice  from  Mexico, 
should  obtain  intelligence,  through  any  other  channel,  of  the  existence  of 
Mexican  captives  within  its  territory,  it  will  proceed  forthwith  to  effect  their 
release  and  delivery  to  the  Mexican  agent  as  above  stipulated. 

For  the  purpose  of  giving  to  these  stipulations  the  fullest  possible  efficacy, 
thereby  affording  the  security  and  redress  demanded  by  their  true  spirit  and 
intent,  the  government  of  the  United  States  will  now  and  hereafter  pass,  with- 
out unnecessary  delay,  and  always  vigilantly  enforce,  svich  laws  as  the  nature 
of  the  subject  may  require.  And  finally,  the  sacredness  of  this  obligation  shall 
never  be  lost  sight  of  by  the  said  government  when  pi'oviding  for  the  removal 
of  the  Indians  from  any  jDortion  of  the  said  territories,  or  for  its  being  settled 
by  citizens  of  the  United  States;  but,  on  the  contrary,  special  care  shall  then 
be  taken  not  to  place  its  Indian  occupants  under  the  necessity  of  seeking  new 
homes,  by  committing  those  invasions  which  the  United  States  have  solemnly 
obliged  themselves  to  restrain. 

ARTICLE  XII. 

Fifteen  million  dollars  to  he  paid  to  Mexico. 

In  consideration  of  the  extension  acquired  by  the  boundaries  of  the  United 
States,  as  defined  in  the  Fifth  Article  of  the  present  Treaty,  the  government  of 
the  United  States  engages  to  pay  to  that  of  the  Mexican  Republic  the  sum  of 
fifteen  millions  of  dollars. 

Installments  of  payment — Interest  on  deferred  payments. 

Immediately  after  this  Treaty  shall  have  been  duly  ratified  by  the  govern- 
ment of  the  Mexican  Republic,  the  sum  of  three  millions  of  dollars  shall  be 
paid  to  the  said  government  by  that  of  the  United  States,  at  the  city  of  Mexico, 
in  gold  or  silver  coin  of  Mexico.  The  remaining  twelve  millions  of  dollars 
shall  be  paid  at  the  same  place,  and  in  the  same  coin,  in  annual  installments  of 

27 


siv  TREATY  OF  GUADALrPE  HIDALGO. 

tliree  millions  of  doUai-s  each,  tooetlier  with  interest  on  the  same  at  the  rate  of 
six  per  centum  i)er  auuuni.  This  interest  shall  begin  to  run  upon  tlie  whole 
sum  of  twelve  millions  from  the  day  of  the  ratification  of  the  present  Treaty  by 
the  Mexican  govemment,  and  the  first  of  the  installments  shall  be  paid  at  the 
expiration  of  one  year  from  the  same  day.  Together  with  each  annual  install- 
ment, as  it  falls  due,  the  whole  interest  accruing 'on  such  installment  from  the 
beginning  shall  also  be  paid. 

ARTICLE  XIII. 

Asstu)i]>(tun  by  United  Slates  of  claims  against  llexico. 

The  Uuit4:'d  States  engage,  moreover,  to  assume  and  paj'  to  the  claimants  all 
the  amounts  now  due  them,  and  those  hereafter  to  become  due,  b}'  reason  of 
the  claims  already  liquidated,  and  decided  against  the  Mexican  Republic,  under 
the  conventions  between  the  two  republics  severally  concluded  on  the  eleventh 
day  of  April,  eighteen  hundred  and  thirty-nine,  and  on  the  thirtieth  day  of 
January,  eighteen  hundred  and  fortj'-three;  so  that  the  Mexican  Republic  shall 
be  absolutely  exempt  for  the  future  from  all  expenses  whatever  on  account  of 
the  Siiid  chiims. 

ARTICLE  XIV. 
Disclianie  of  claims  of  American  citizens  against  Mexico. 

The  United  States  do  furthermore  discharge  the  Mexican  Republic  from  all 
claims  of  citizens  of  the  United  States,  not  heretofore  decided  against  the 
Mexican  government,  which  may  have  arisen  previously  to  the  date  of  the  sig- 
nature of  this  Treaty;  which  discharge  shall  be  final  and  perpetual,  whether  the 
»»aid  claims  be  rejected  or  be  allowed  by  the  board  of  commissioners  provided 
for  in  the  following  article,  and  whatever  shall  be  the  total  amount  of  those 
alloweil. 

ARTICLE  XV. 
Satij</aclion  of  claims. 

The  United  States,  exonei'ating  Mexico  from  all  demands  on  account  of  the 
claims  of  their  citizens  mentioned  in  the  preceding  article,  and  considering  them 
entirely  aud  forever  canceled,  whatever  their  amount  may  be,  undertake  to 
make  satisfaction  for  the  same,  to  an  amount  not  exceeding  three  and  one 
quarter  millions  of  dollars.  To  ascertain  the  validity  and  amount  of  those 
claims,  a  board  of  commissioners  shall  be  established  by  the  government  of  the 
Lnittd  States,  whose  awards  shall  be  final  and  conclusive;  provided  that,  in 
deciding  upon  the  validity  of  each  claim,  the  board  sliall  be  guided  and  gov- 
erned Ijy  the  princi2)los  and  rules  of  decision  prescribed  by  the  first  and  fifth 
articles  of  the  unratified  conveutioii,  concluded  at  the  city  of  Mexico  on  the 
twentieth  day  of  November,  one  thousand  eight  hundred  and  forty-thi'ee;  and 
in  uo  case  shall  an  award  be  made  in  favor  of  any  claim  not  embraced  by  these 
liriucijjloH  and  rules. 

If,  in  tlie  ojjinion  of  the  said  board  of  commissioners,  or  of  the  claimants,  any 
iKjokx,  roc<jrdH,  or  documents  in  the  possession  or  power  of  the  government  of 
the  Mexican  Republic,  shall  be  deemed  necessary  to  the  just  decision  of  any 
cluini,  the  cumniissionei-K,  or  the  claimants  through  them,  shall,  within  such 
jHTiod  jiH  congresK  may  designate,  make  an  application  in  writing  for  the  same, 
addresHc.l  to  the  Mexican  minister  for  foreign  aftairs,  to  be  transmitted  by  the 
hccrelun-  of  utiiU:  of  the  United  States;  and  the  Mexican  government  engages, 
at  the  earliest  possible  moment  after  the  receipt  of  such  demand,  to  cause  any 
uf  the  Ixwks,  records,  or  documents,  so  specified,  which  shall  be  in  their  pos- 
session or  power  (or  authenticated  copies  or  extracts  of  the  same),  to  be  trans- 
mittal to  tlie  said  Hecretan-  r»f  state,  who  sliall  immediately  deliver  them  over 
to  the  said  board  of  commishioners;  provided,  that  no  such  application  shall  be 

28 


TREATY  OF  GUADALUPE  HIDALGO.  xir 

made  by,  or  at  the  instance  of,  any  claimant,  until  tlie  facts  which  it  is  expected 
to  prove  by  such  books,  records,  or  documents,  shall  have  been  stated  under 
oath  or  affirmation. 

ARTICLE  XYI. 

Fortifica (ion .9  for  s^cc itr it)/ . 

Each  of  the  contractiiif^f  parties  reserves  to  itself  the  entire  lig'ht  to  fortify 
whatever  i:)oint  Avithin  its  territoiy  it  may  judge  proper  so  to  fortify,  for  its 
security. 

ARTICLE  XVII. 

Treaty  of  amity,  commerce  and  navigation. 

The  Treaty  of  amity,  commerce  and  navigation,  concluded  at  the  city  of 
Mexico  on  the  fifth  day  of  April,  a.  0.  1831,  between  the  United  States  of 
America  and  the  United  Mexican  States,  except  the  additional  article,  and 
except  so  far  as  the  stipulations  of  the  said  Treaty  may  be  incompatible  with 
any  stipulation  contained  in  the  present  Treaty,  is  hereby  re^dved  for  the  period 
of  eight  years  from  the  day  of  the  exchange  of  ratifications  of  this  Treaty,  with 
the  same  force  and  vii'tue  as  if  incorporated  therein;  it  being  understood  that 
each  of  the  contracting  parties  reserves  to  itself  the  right,  at  any  time  after  the 
said  period  of  eight  years  shall  have  expired,  to  terminate  the  same  by  giving 
one  year's  notice  of  such  intention  to  the  other  party. 

ARTICLE  XVIII. 

Supplies  for  American  troops  j^revious  to  evacuation. 

All  supplies  whatever,  for  troops  of  the  United  States  in  Mexico,  arriving  at 
ports  in  the  occupation  of  such  troops  previous  to  the  final  evacuation  thereof, 
although  subsequently  to  the  restoration  of  the  custom-houses  at  such  ports, 
shall  be  entirely  exempt  from  duties  and  charges  of  any  kind;  the  government 
of  the  United  States  hereby  engaging  and  pledging  its  faith  to  establish,  and 
vigilantly  to  enforce  all  possible  guards  for  securing  the  revenue  of  Mexico,  by 
preventing  the  importation,  under  cover  of  this  stipulation,  of  any  articles  other 
than  such,  both  in  kind  and  quantity,  as  shall  really  be  wanted  for  the  use  and 
consumi")tion  of  the  forces  of  the  United  States  during  the  time  they  may 
remain  in  Mexico.  To  this  end,  it  shall  be  the  duty  of  all  oj0ficers  and  agents 
of  the  United  States  to  denounce  to  the  Mexican  authorities  at  the  respective 
ports  any  attempts  at  a  fraudulent  abuse  of  this  stipulation  which  they  may 
know  of  or  may  have  reason  to  suspect,  and  to  give  to  such  authorities  all  the 
aid  in  their  power  with  regard  thereto;  and  eveiy  such  attempt,  when  duly 
proved  and  established  by  sentence  of  a  competent  tribunal,  shall  be  punished 
by  the  confiscation  of  the  property  so  attempted  to  be  fraudulently  introduced. 

ARTICLE  XIX. 

Bides  of  importation  into  Mexican  ports. 

With  respect  to  all  merchandise,  effects,  and  property  whatsoever,  imported 
into  ports  of  Mexico  whilst  in  the  occupation  of  the  forces  of  the  United  States, 
whether  by  citizens  of  either  republic,  or  by  citizens  or  subjects  of  any  neutral 
nation,  the  following  rules  shall  be  observed : — 

1.  All  such  merchandise,  effects,  and  property,  if  imported  previoiisly  to  the 
restoration  of  the  custom-houses  to  the  ^Mexican  authorities,  as  stipulated  for 
in  the  Third  Article  of  this  Treaty,  shall  be  exempt  from  confiscation,  although 
the  importation  of  the  same  be  prohibited  by  the  Mexican  tariff. 

2.  The  same  jjerfect  exemption  shall  be  enjoyed  by  all  such  merchandise, 
effects,  and  property,  imported  subsequently  to  the  restoration  of  the  custom- 

29 


xiv  TREATY  OF  GUADALUPE  HIDALGO. 

houses,  and  previously  to  the  sixty  days  fixed  in  the  following  article  for  the 
comiu!,'  into  force  of  the  Mexican  tariff  at  such  ports  respectively;  the  said 
merchandise,  effects,  and  property  beiug,  however,  at  the  time  of  their  impor- 
tation, subject  to  the  payment  of  duties,  as  provided  for  in  the  said  following 
article. 

3.  All  merchandise,  effects,  and  property  described  in  the  two  rules  foregoing 
shall,  during  their  continuance  at  the  place  of  importation,  and  upon  their  leav- 
ing such  place  for  the  interior,  be  exempt  from  all  duty,  tax,  or  impost  of  every 
kind,  vinder  whatsoever  title  or  denomination.  Nor  shall  they  be  there  subjected 
to  any  charge  whatsoever  upon  the  sale  thereof. 

4.  All  merchandise,  effects,  and  property  described  in  the  first  and  second 
rules,  which  shall  have  l)een  removed  to  any  place  in  the  interior  whilst  such 
place  was  in  the  occupation  of  the  forces  of  the  United  States,  shall,  during 
their  continuance  therein,  be  exempt  from  all  tax  ujDon  the  sale  or  consumption 
thereof,  and  from  every  kind  of  impost  or  contribution,  under  whatsoever  title 
or  denomination. 

o.  But  if  any  merchandise,  effects,  or  property  described  in  the  first  and  second 
rules,  shall  be  removed  to  any  place  not  occupied  at  the  time  by  the  forces  of 
the  United  States,  they  shall,  upon  their  introduction  into  such  place,  or  upon 
their  sale  Or  consumption  there,  be  subject  to  the  same  duties  which,  under  the 
Mexican  laws,  they  would  be  required  to  pay  in  such  cases  if  they  had  been  im- 
ported in  time  of  peace,  through  the  maritime  custom-houses,  and  had  there 
paid  the  duties  conformably  with  the  Mexican  tariff". 

G.  The  owners  of  all  merchandise,  effects,  or  property  described  in  the  first 
and  second  rules,  and  existing  in  an}'  jDort  of  Mexico,  shall  have  the  right  to 
reship  the  same,  exempt  from  all  tax,  impost,  or  contribution  whatever. 

With  respect  to  the  metals,  or  other  property,  exported  from  anj  Mexican 
jiort  whilst  in  the  occupation  of  the  forces  of  the  United  States,  and  joreviously 
to  the  restoration  of  the  custom-house  of  such  port,  no  person  shall  be  required 
by  the  Mexican  authoi'ities,  whether  general  or  state,  to  pay  any  tax,  duty,  or 
contribution  upon  any  such  exportation,  or  in  any  manner  to  account  for  the 
same  to  the  said  authorities. 

ARTICLE  XX. 

Certain  proprrty  fo  he  admiltcd  to  entry. 

Tlirough  consideration  for  the  interests  of  commerce  generally,  it  is  agreed, 
that  if  less  than  sixty  days  should  elapse  between  the  date  of  the  signature  of 
this  Treaty  and  the  i-estoration  of  the  custom-houses  conformably  with  the  stij)- 
ulation  in  the  third  article,  in  such  case  all  merchandise,  effects,  and  property 
whutis(»ever,  arriving  at  the  Mexican  ports  after  the  restoration  of  the  said  cus- 
tom-housoK,  and  previously  to  the  expiration  of  sixty  days  after  the  day  of  the 
Hignature  of  tliis  Treaty,  shall  be  admitted  to  entry;  and  no  other  duties  shall  be 
levied  thereon  than  the  duties  established  by  the  tariff  found  in  force  at  such 
cuKtom-liouhcs  at  the  time  of  the  restoration  of  the  same.  And  to  all  such  mer- 
chandise, effects,  and  i)roperty,  the  rules  established  by  the  preceding  articles 
Khali  apply. 

AUTiCLE  XXI. 
Future  dimijreemi'nt — A rhitrnl'mn . 

If  tiiiha]ti»ily  any  disagrccnicnt  should  hereafter  anse  between  the  govern- 
mentH  of  the  two  rejjublics,  whether  with  respect  to  the  intei-jiretation  of  any 
stipulation  in  this  Treaty,  or  with  res])ect  to  any  other  particular  concerning  the 
political  or  comnierrial  relations  of  tlie  two  nations,  the  said  governments,  in 
the  name  of  those  nations,  do  promise  to  each  other  that  they  will  endeavor,  in 

30 


TKEATY  OF  GUADALUPE  HIDALGO.  xiv 

the  most  sincere  and  earnest  manner,  to  settle  tlie  differences  so  arising,  and  to 
preserve  the  state  of  joeace  and  friendship  in  which  the  two  countries  are  now 
phicing-  themselves;  using,  for  this  end,  mutual  representations  and  pacific  nego- 
tiations. And  if,  by  these  means,  they  should  not  be  enabled  to  come  to  an 
agreement,  a  resort  shall  not,  on  this  account,  be  had  to  reprisals,  aggression, 
or  hostility  of  any  kind,  by  the  one  republic  against  the  other,  until  the  govern- 
ment of  that  which  deems  itself  aggrieved  shall  have  maturely  considered,  in 
the  spirit  of  peace  and  good  neighborship,  whether  it  would  not  be  better  that 
such  difference  should  be  settled  by  the  arbitration  of  commissioners  appointed 
on  each  side,  or  by  that  of  a  friendly  nation.  And  should  such  course  be  pro- 
posed by  either  party,  it  shall  be  acceded  to  by  the  other,  unless  deemed  by  it 
altogether  incompatible  with  the  nature  of  the  difference,  or  the  circumstances 
of  the  case, 

ARTICLE  XXII. 

War — Private  jiroperty — Bespect  for  churches,  etc. — Prisoners  of  war. 

If  (which  is  not  to  be  expected,  and  which  God  forbid!)  war  should  unhappily 
break  out  between  the  two  republics,  they  do  now,  with  a  view  to  such  calamity, 
solemnly  pledge  themselves  to  each  other  and  to  the  world,  to  observe  the  fol- 
lowing rules,  absolutely,  where  the  nature  of  the  subject  permits,  and  as  closely 
as  possible  in  all  cases  where  such  absolute  observance  shall  be  impossible: 

1.  The  merchants  of  either  republic  then  residing  in  the  other  shall  be  allowed 
to  remain  twelve  months  (for  those  dwelling  in  the  interior),  and  six  months 
(for  those  dwelling  at  the  seaports),  to  collect  their  debts  and  settle  their  affairs; 
during  which  periods  they  shall  enjoy  the  same  protection  and  be  on  the  same 
foothig,  in  all  respects,  as  the  citizens  or  subjects  of  the  most  friendly  nations; 
and,  at  the  expiration  thereof,  or  at  any  time  before,  they  shall  have  full  liberty 
to  depart,  carrying  off"  all  their  effects  Avithout  molestation  or  hindrance;  con- 
forming therein  to  the  same  laws  which  the  citizens  or  subjects  of  the  most 
friendly  nations  are  required  to  conform  to.  Upon  the  entrance  of  the  armies 
of  either  nation  into  the  territories  of  the  other,  women  and  children,  ecclesias- 
tics, scholars  of  every  faculty,  cultivators  of  the  earth,  merchants,  artisans, 
manufacturers,  and  fishermen,  unarmed  and  inhabiting  unfortified  towns,  vil- 
lages, or  places,  and  in  general  all  persons  whose  occupations  are  for  the  com- 
mon subsistence  and  benefit  of  mankind,  shall  be  allowed  to  continue  their 
resi)ective  employments  unmolested  in  their  persons.  Nor  shall  their  houses  or 
goods  be  burnt  or  otherwise  destroyed,  nor  their  cattle  taken,  nor  their  fields 
wasted,  by  the  armed  force  into  whose  power,  by  the  events  of  war,  they  may 
happen  to  fall;  but  if  the  necessity  arise  to  take  anything  from  them  for  the  use 
of  such  armed  force,  the  same  shall  be  paid  for  at  an  equitable  price.  All 
churches,  hospitals,  schools,  colleges,  libraries,  and  other  establishments,  for 
charitable  and  beneficent  pm-poses,  shall  be  respected,  and  all  persons  connected 
with  the  same  protected  in  the  discharge  of  their  duties  and  the  pursuit  of  their 
vocations. 

2.  In  order  that  the  fate  of  prisoners  of  war  may  be  alleviated,  all  such  prac- 
tices as  those  of  sending  them  into  distant,  inclement,  or  unwholesome  districts, 
or  crowding  them  into  close  and  noxious  places,  shall  be  studiously  avoided. 
They  shall  not  be  confined  in  dungeons,  prison-ships,  or  prisons;  nor  be  put  in 
irons,  or  bound,  or  otherwise  restrained  in  the  use  of  their  limbs.  The  officers 
shall  enjoy  liberty  on  their  paroles,  within  convenient  districts,  and  have  com- 
fortable quarters;  and  the  common  soldiers  shall  be  disposed  in  cantonments, 
open  and  extensive  enough  for  air  and  exercise,  and  lodged  in  barracks  as  roomy 
and  good  as  are  provided  by  the  party  in  whose  power  they  are,  for  its  own 
troops.     But  if  any  officer  shall  break  his  parole  by  leaving  the  district  so  as- 

31 


siv  TREATY  OF  GrADALUPE  HIDALGO. 

signed  him,  or  any  other  prisoner  shall  escape  from  the  limits  of  his  cantonment, 
after  they  shall  have  been  designated  to  him,  such  individual,  officer  or  other 
prisoner,  shall  forfeit  so  much  of  the  benefit  of  this  article  as  pro\ddes  for  his 
liV)ei-ty  on  parole  or  in  cantonment.  And  if  any  officer  so  breaking  his  parole, 
or  any  common  soldier  so  escaping  from  the  limits  assigned  him,  shall  after- 
wai-ds  be  found  in  arms,  previously  to  his  being  regularly  exchanged,  the  per- 
son so  olTending  shall  be  dealt  with  according  to  the  established  laws  of  war. 
The  officei-s  shall  l>e  daily  furnished  by  the  party  in  whose  power  they  are,  with 
as  many  rations,  and  of  the  same  articles,  as  are  allowed,  either  in  kind  or  by 
commutation,  to  otficei-s  of  equal  rank  in  its  own  army;  and  all  others  shall  be 
daily  furnished  with  such  ration  as  is  allowed  to  a  common  soldier  in  its  own 
service:  the  value  of  all  which  supplies  shall,  at  the  close  of  the  war,  or  at  peri- 
ods to  1)e  agreed  upon  between  the  resj^ective  commanders,  be  paid  by  the  other 
pai-ty,  on  a  mutual  adjustment  of  accounts  for  the  subsistence  of  prisoners;  and 
such  accounts  shall  not  be  mingled  with  or  set  off  against  any  other?,  nor  the 
Ixilance  due  on  them  be  withheld,  as  a  compensation  or  reprisal  for  any  cause  what- 
ever, real  or  pretended.  Each  party  shall  be  allowed  to  keep  a  commissaiy  of 
prisoners,  apjjoiuted  by  itself,  with  eveiy  cantonment  of  prisoners,  in  possession 
of  the  other;  which  commissary  shall  see  the  prisoners  as  often  as  he  pleases; 
shall  be  allowed  to  receive,  exemj)t  from  all  duties  or  taxes,  and  to  distribute, 
whatever  comforts  may  be  sent  to  them  by  their  friends;  and  shall  be  free  to 
transmit  his  reports  in  ojien  letters  to  the  party  by  whom  he  is  employed. 

And  it  is  declared  that  neither  the  pretense  that  war  dissolves  all  treaties,  nor 
any  other  whatever,  shall  be  considered  as  annulling  or  suspending  the  solemn 
covenant  contained  in  this  article.  On  the  contrary,  the  state  of  war  is  precisely 
that  for  which  it  is  provided;  and  during  which  its  stipulations  are  to  be  as 
sacredly  obsei'ved  as  the  most  acknowledged  obligations  under  the  law  of  nature 
or  nations. 

AETICLE  XXIII. 
Ratificniion  of  Irenly. 

This  Treaty  shall  be  ratified  by  the  president  of  the  United  States  of  America, 
by  and  with  the  ad^^ce  and  consent  of  the  senate  thereof;  and  by  the  president  of 
the  Mexican  Republic,  with  the  previous  approbation  of  its  general  congress;  and 
the  ratifications  shall  be  exchanged  in  the  city  of  Washington,  or  at  the  seat  of 
{,'overnmcnt  of  ^lexico,  in  four  months  from  the  date  of  the  signature  hereof, 
or  sooner  if  practicable. 

In  faith  whereof,  we,  the  respective  plenipotentiaines,  have  signed  this  Treaty 
of  \K'ixv('.  friendship,  limits,  and  settlement;  and  have  hereunto  affixed  our  seals 
respectively.  Done  in  quintuplicate,  at  the  city  of  Guadalupe  Hidalgo,  on  the 
second  day  of  Februar}-,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  forty-eight. 

N.  P.  Trist.  [l.  s.l 

Luis  G.  CUEVAS.  [l.  s.] 
Bernardo  Couto.  |i..  s.] 
MiGL.  Atristax.     [l.  S.J 

And  wherea«  the  said  Treaty,  as  amended,  has  been  duly  ratified  on  both 
partH,  and  the  respective  ratifications  of  the  same  were  exchanged  at  Queretaro 
on  the  tliirtieth  day  of  May  last,  by  Ambrose  H.  Sevier  and  Nathan  Clifford, 
ronuiiiHsicnjci-H  on  iho  i)art  of  the  goveniment  of  the  United  States,  and  by 
Sefior  Df>n  Luis  de  \n  Rosa,  minister  of  relations  of  the  Mexican  Republic,  on 
the  part  of  that  goveniment : 

Now,  tlierefore,  Ix;  it  known,  that  I,  James  K.  Polk,  President  of  the  United 
States  of  ^Vouerica,  have  caused  the  said  Treaty  ^to  be  made  public,  to  the  end 

32 


TREATY  OF  GUADALUPE  HIDALGO.  xiv-xv 

that  the  same  and  every  clause  and  article  thereof  may  he  ohservcd  and  fidlillod 
%Yith  good  faith  by  the  United  States  and  the  citizens  thereof. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  caused  the  seal  of  the 
United  States  to  be  affixed. 

Done  at  the  city  of  Washington,  this  fourth  day  of  July,  one  thousand 
[l.  s.]        eight  hundred  and  forty-eight,   and  of    the  Independence  of  the 
United  States  the  seventv-third. 

JA^IES  K.  POLK. 
By  the  President: 

James  Buchanan,  Secretary  of  State. 


3^rtidc0  xtkxxth  to  in  tl)c  Jifteeiitlj  ^rtjdc  of  tljc 

iUtrci^ing  orratij. 

EIRST  AND  FIFTH  ARTICLES  OF  THE  UNRATIFIED  CONVENTION 
BETWEEN  THE  UNITED  STATES  AND  THE  MEXICAN  REPUB- 
LIC, OF  THE  20th  NOVEMBER,  1843. 


ARTICLE  I. 
XV.   Commissioners  of  claims. 

All  claims  of  citizens  of  the  Mexican  Republic  against  the  government  of  the 
United  States,  which  shall  be  presented  in  the  manner  and  time  hereinafter  ex- 
pressed, and  all  claims  of  citizens  of  the  United  States  agains-t  the  government 
of  the  Mexican  Republic,  whi(;h  for  whatever  cause  were  not  submitted  to,  nor 
considered  nor  linally  decided  by,  the  commission,  nor  by  the  arbiter  appointed 
by  the  convention  of  1839,  and  which  shall  be  presented  in  the  manner  and 
time  hereinafter  specified,  shall  be  referred  to  four  commissioners,  who  shall 
form  a  board,  and  shall  be  a2)pointed  in  the  following  manner,  that  is  to  say: 
Two  commissioners  shall  be  appointed  by  the  president  of  the  Mexican  Repub- 
lic, and  the  other  two  by  the  president  of  the  United  States,  with  the  approbation 
and  consent  of  the  senate.  The  said  commissioners,  thus  ajipointed,  shall,  in 
the  presence  of  each  other,  take  an  oath  to  examine  and  decide  impartially  the 
claims  submitted  to  them,  and  Avhich  may  lawfully  be  considered,  according  to 
the  proofs  which  shall  be  presented,  the  jirincijjles  of  right  and  justice,  the  law 
of  nations,  and  the  treaties  between  the  two  republics. 

ARTICLE  V. 

Umpire. 

All  claims  of  citizens  of  the  United  States  against  the  government  of  the  Mex- 
ican Republic,  which  were  considered  by  the  commissioners,  and  refeiTcd  to  the 
umpire  appointed  under  the  convention  of  the  eleventh  April,  1839,  and  which 
were  not  decided  by  him,  shall  be  referred  to,  and  decided  by,  the  umpire  to 
be  ai^pointed,  as  provided  by  this  convention,  on  the  points  submitted  to  the 
f  mpire  under  the  late  convention,  and  his  decision  shall  be  final  and  conclusive. 
It  is  also  agreed  that,  if  the  respective  commissioners  shall  deem  it  expedient, 
they  may  submit  to  the  said  arbiter  new  arguments  upon  the  said  claims. 
3  33 


iirocliiiiialioiio  to  tl)c  ilco^ilc  of  (Talifonna. 


jJvaclamatioUt 

CALLINCi  A  CONVENTION  TO  FORM  A  STATE  CONSTITUTION  FOR 

CALIFORNIA. 

xvi.  Character  of  General  Riley's  adminMrafion — Mexican  laws  in  force — Con- 
vention for  State  Constitution. 

Congress  lla^ing  failed,  at  its  recent  session,  to  iDrovide  a  new  g-overament  for 
this  fountiy,  to  replace  that  which  existed  on  the  annexation  of  California  to 
the  United  States,  the  undersigned  would  call  attention  to  the  means  which  he 
deems  Ijest  calculated  to  avoid  the  embaiTassments  of  our  present  position. 

The  undersigned,  in  accordance  with  instructions  from  the  secretary  of  war, 
has  assumed  the  administration  of  ciA'il  affairs  in  California,  not  as  a  militaiy 
governor,  but  as  the  executive  of  the  existing  civil  government.  In  the  absence 
of  a  properly  appointed  civil  governor,  the  coinnianding*  officer  of  the  depart- 
ment is,  by  the  laws  of  California,  ex  officio  civil  governor  of  the  countiy,  and 
the  instnictious  from  "Washington  were  based  on  the  provisions  of  these  laws. 
This  subject  has  been  misrepresented,  or  at  least  misconceived,  and  currency 
ffiven  to  the  impression  that  the  government  of  the  countiy  is  still  military. 
Such  is  not  the  fact.  The  military  government  ended  with  the  war,  and  what 
remaiiiK  is  the  civil  government  recognized  in  the  existing  laws  of  California. 
Although  the  command  of  the  troops  in  this  department,  and  the  administration 
of  civil  ufl'aii-s  in  Califcn-nia,  are,  by  the  existing  laws  of  the  country,  and  the 
instructions  of  the  president  of  the  United  States,  temporarily  lodged  in  the 
huinls  of  the  same  individual,  they  are  separate  and  distinct.  No  military 
oflicer,  otlier  than  the  comnumding  general  of  the  department,  exercises  any 
civil  authority  by  virtue  of  his  military  commission,  and  the  powers  of  the  com- 
manding g«nera],  as  ex  officio  governor,  are  only  such  as  are  defined  and  recog- 
nized in  the  existing  laws.  The  instructions  of  the  secretaiy  of  war  make  it  the 
duty  of  all  military  officers  to  recognize  the  existing  civil  government,  and  to 
aid  itK  officei-H  with  the  military  f(jrce  under  their  control.  Beyond  this,  any 
interference  in  not  only  uncalled  for,  l)ut  strictly  forl)idden. 

Tli<-  laws  of  Ciilifornia,  not  inconsistent  with  the  laAVS,  constitution,  and 
treaties  of  the  United  States,  are  still  in  fcn-ce,  and  must  continue  in  force  until 
changed  by  competent  authority.  Whatever  may  be  thought  of  the  right  of  the 
peoph'  to  temporarily  replace  tlie  officers  of  the  existing  government  by  others 
apjioiiited  by  a  provisional  territorial  legislature,  there  can  be  no  (question  that 
the  existing  laws  of  the  conntrv  must  continue  in  force  till  replaced  by  others 
made  and  enacted  by  competent  power.  That  power,  by  the  treaty  of  peace,  as 
well  n«  from  the  nature  of  the  case,  is  vested  in  congiess.  The  situation  of 
California,  in   this  respect,  is  very  different  from  Ihid  of  Oregon.     The  latter 


PKOCLAMATIONS  TO  THE  PEOPLE  OF  CALIFORNIA.         xvi 

vras  Avitliout  laws,  while  the  former  has  a  system  of  laws,  Avhieh,  though  sojne- 
what  defective,  aiul  reciiiiring  many  changes  and  amendments,  mnst  continue  in 
force  till  rejoealed  by  competent  legislative  power.  The  situation  of  California 
is  almost  identical  with  that  of  Louisiana;  and  the  decisions  of  the  supreme 
court,  in  recognizing  the  A^alidity  of  the  laws  which  existed  in  that  countn-  pre- 
vious to  its  annexation  to  the  United  States,  where  not  inconsistent  with  the 
constitution  and  laws  of  the  United  States,  or  repealed  by  legitimate  legislatiA-e 
enactments,  furnish  us  a  clear  and  safe  guide  in  our  present  situation.  It  is 
important  that  citizens  should  understand  this  fact,  so  as  not  to  endanger  their 
2:)roperty  and  involve  themselves  in  useless  and  expensive  litigation,  by  giving 
countenance  to  persons  claiming  authority  which  is  not  given  them  by  law,  and 
by  putting  faith  in  laws  which  can  never  be  recognized  by  legitimate  courts. 

As  congress  has  failed  to  organize  a  new  territorial  government,  it  becomes 
our  imperative  duty  to  take  some  active  measures  to  provide  for  the  existing 
■wants  of  the  country.  This,  it  is  thought,  may  be  best  accomplished  by  putting 
in  full  vigor  the  administration  of  the  laws  as  they  now  exist,  and  completing 
the  organization  of  the  civil  government,  by  the  election  and  appointment  of  all 
officers  recognized  by  law;  while,  at  the  same  time,  a  convention,  in  which  all 
parts  of  the  territory  are  i-epresented,  shall  meet  and  frame  a  state  constitution, 
or  a  territorial  organization,  to  be  submitted  to  the  people  for  their  ratifica- 
tion, and  then  proposed  to  congress  for  its  approval.  Considerable  time  will 
necessarily  elapse  before  any  new  government  can  be  legitimately  organized  and 
2)ut  in  operation;  in  the  interim,  the  existing  government,  if  its  organization  be 
completed,  will  be  found  sufficient  for  all  our  temporary  wants. 

A  brief  summary  of  the  organization  of  the  present  government  may  not  be 
uninteresting.  It  consists:  1.  Of  a  governor,  appointed  by  the  supreme  gov- 
ernment: in  default  of  such  appointment,  the  office  is  temporarily  vested  in  the 
commanding  military  officer  of  the  department.  The  powers  and  duties  of  the 
governor  are  of  a  limited  character,  but  fully  defined  and  pointed  out  by  the 
laws.  2.  A  secretary,  whose  duties  and  powers  are  also  properly  defined.  3.  A 
territorial  or  departmental  legislature,  with  limited  power  to  pass  laws  of  a  local 
character.  4.  A  superior  court  (tribunal  superior)  of  the  territory,  consisting 
of  four  judges  and  a  fiscal.  5.  A  prefect  and  sub-prefects  for  each  district,  who 
are  charged  with  the  preservation  of  public  order  and  the  execution  of  the  laws ; 
their  duties  correspond,  in  a  great  measiu'e,  with  those  of  district  marshals  and 
sheriffs.  6.  A  judge  of  first  instance  for  each  district.  This  office  is,  by  a 
custom  not  inconsistent  with  the  laws,  vested  in  the  first  alcalde  of  the  district. 
7.  Alcaldes  who  have  concurrent  jurisdiction  among  themselves  in  the  same 
district,  but  are  subordinate  to  the  higher  judicial  tribunals.  8.  Local  justices 
of  the  peace.  9.  Ayuntamientos,  or  town  councils.  The  powers  and  functions 
of  all  these  officers  are  fully  defined  in  the  laws  of  this  country,  and  are  almost 
identical  with  those  of  the  corresponding  offices  in  the  Atlantic  and  western  states. 

In  order  to  complete  this  organization  with  the  least  possil:)le  delay,  the  under- 
signed, in  virtue  of  power  in  him  vested,  does  hereby  appoint  the  first  of  August 
next  as  the  day  for  holding  a  special  election  for  delegates  to  a  general  conven- 
tion, and  for  filling  the  offices  of  judges  of  the  sui:)erior  court,  prefects  and  siib- 
prefects,  and  all  vacancies  in  the  offices  of  first  alcalde  (or  judge  of  first 
instance),  alcaldes,  justices  of  the  peace,  and  town  councils.  The  judges  of  the 
siiperior  court,  and  district  prefects,  are  by  law  executive  appointments,  liut 
being  desirous  that  the  wishes  of  the  people  should  be  fully  consulted,  the  gov- 
ernor will  appoint  such  persons  as  may  receive  the  plurality  of  votes  in  their 
respective  districts,  provided  they  are  competent  and  eligible  to  the  office.  Each 
district  will  therefore  elect  a  prefect  and  two  sub-prefects,  and  fill  the  vacancies 
in  the  offices  of  first  alcalde  (or  judge  of  first  instance)  and  of  alcaldes.     One 

35 


xvi         PROCLAMATIONS  TO  THE  PEOPLE  OF  CALIFORNIA. 

jiulfre  of  the  superior  court  will  be  elected  in  the  districts  of  San  Diego,  Los 
Auj,'eles  and  Santa  Barbara;  one  in  the  districts  of  San  Luis  Obispo  and  Mon- 
terey; one  in  the  districts  of  San  Jose  and  San  Francisco;  and  one  in  the  districts 
of  Sonoma,  Sacramento  and  San  Joaquin.  Tlie  salaries  of  tlie  judfjes  of  the 
superior  eouii,  the  prefects  and  judges  of  first  instance,  are  rt^gulated  by  the 
governor,  but  cannot  exceed,  for  the  first,  four  thousand  dollars  per  annum;  for 
the  second,  two  thousand  five  hundred  dollai-s,  and  for  the  third,  one  thousand 
live  hundred  dollai-s.  These  sahuies  Avill  be  paid  out  of  the  civil  fund  which 
has  l»een  formed  from  the  proceeds  of  the  customs,  provided  no  instructions  to 
the  fonti-ary  are  received  from  "Washington.  The  laAV  requires  that  the  judges 
of  the  sujjerior  court  meet  Avithin  three  months  after  its  organization,  and  form 
a  tariff  of  fees  for  the  difterent  territorial  courts  and  legal  officers,  including  all 
alcaldes,  justices  of  the  peace,  sheriffs,  constal)les,  etc. 

All  local  alcaldes,  justices  of  the  peace,  and  members  of  town  councils  elected 
at  the  special  election,  will  continue  in  office  till  the  first  January,  one  thousand 
eiglit  hundred  and  fifty,  when  theu-  j^laces  will  be  supplied  by  the  pereons  who 
mav  l>e  elected  at  the  regular  annual  election,  which  takes  place  in  November, 
at  \\  hic'h  time  the  election  of  members  to  the  territorial  assembly  will  also  be  held. 

The  general  convention  for  f oraiing  a  state  constitution  or  a  plan  for  territorial 
g«»veniment,  will  consist  of  thirty-seven  delegates,  who  will  meet  in  Monterey 
on  the  fii*st  day  of  September  next.    These  delegatts  Arill  be  chosen  as  follows: — 

The  district  of  San  Diego  will  elect  two  delegates,  of  Los  Angeles  four,  of 
.Santa  Barbara  two,  of  San  Luis  Obispo  two,  of  Monterey  five,  of  San  Jose  five, 
of  San  Francisco  five,  of  Sonoma  -four,  of  Sacramento  four,  of  San  Joaquin 
four.  Should  any  district  think  itself  entitled  to  a  greater  number  of  delegates 
than  the  above  named,  it  may  elect  supernumeraries,  who,  on  the  organization 
of  the  convention,  will  be  admitted  or  not  at  the  i)leasure  of  that  body. 

The  places  for  holding  the  election  will  be  as  follows:  San  Diego,  San  Juan 
Capistrano,  Los  Angeles,  San  Fernando,  San  Buenaventura,  Santa  Barbara, 
Nepoma.  San  Luis  Obispo,  Monterey,  San  Juan  Baptiste,  Santa  Cruz,  San  Jose 
ill-  (Juadeluije,  San  Francisco,  San  Rafael,  Bodega,  Sonoma,  Benicia  (the  places 
for  holding  election  in  the  Sacramento  and  San  Joaquin  districts  will  be  here- 
after designated).  The  local  alcaldes  and  members  of  the  ayuntamientos  or 
t'jwn  councils,  will  act  as  judges  and  inspectors  of  elections.  In  case  there 
should  be  less  than  three  such  judges  and  inspectors  present  at  each  of  the 
phu-cH  designiatod  on  the  day  of  election,  tlie  people  will  appoint  some  comj^e- 
tent  person  to  fill  the  vacancies.  The  polls  will  l)c  open  from  ten  o'clock  a.  si. 
to  four  i:  M.,  or  until  sunset,  if  the  judges  deem  it  necessary. 

Every  free  male  citizen  of  the  Fnited  States  and  of  Upper  California,  tw^enty- 
<uu-  years  of  age,  and  actually  resident  in  the  district  where  the  vote  is  offered, 
will  Ix;  entitled  to  the  right  of  suffrage.  All  citizens  of  Lower  California  who 
have  been  forced  Ui  come  to  this  territory  on  account  of  having  rendered  assist- 
ance to  the  American  troojis  during  the  recent  war  with  Mexico,  should  also  be 
allowed  to  vote  in  the  disti-ict  wlure  they  actually  reside. 

(treat  care  slioidd  be  taken  by  the  iusjjectors  that  votes  are  received  only  from 
iK.na  fide  citizens  actually  resident  in  the  country.  These  judges  and  inspec- 
tors, jjreviouH  to  entering  upon  the  duties  of  their  office,  sh(mld  take  an  oath 
faithfully  and  tndy  to  j»erform  these  duties.  Tlie  returns  should  state  distinctly 
the  number  e>f  v<itcK  received  for  each  candidate,  l)e  signed  by  the  inspectors, 
waled,  and  immediately  transmitted  to  the  secretary  of  state  for  file  in  his  office. 

The  follf»wing  are  tlie  limits  of  the  several  districts: — 

1.  The  district  of  San  Diego  is  boimded  on  the  south  by  Lower  California,  on 
Hi*,  west  by  tli#-  Moa.  on  the  north  by  the  parallel  of  latitude  including  the  mis- 
sion San  JuuM  Cajiistrauo,  and  on  the  east  by  the  Coh  rado  river. 


PEOCLAMATIONS  TO  THE  PEOPLE  OF  CALIFORNIA,   xvi-xvii 

2.  The  district  of  Los  Angeles  is  bounded  on  the  south  by  the  district  of  San 
Diego,  on  the  west  by  the  sea,  on  the  north  by  tlie  Santa  Chira  liver,  and  a 
parallel  of  latitude  running  from  the  headwaters  t)f  that  river  to  the  Colorado. 

3.  The  district  of  Santa  Barbara  is  bounded  on  tlie  south  l)y  the  district  of 
Los  Angeles,  on  the  west  by  the  sea,  on  the  north  by  Santa  Inez  river,  and  a 
parallel  of  latitude  existing  from  the  headwaters  of  that  river  to  the  summit  of 
the  coast  range  of  mountains. 

4.  The  district  of  San  Luis  Obispo  is  bounded  on  the  south  by  the  district  of 
Santa  Barbara,  on  the  west  by  the  sea,  on  the  north  by  a  parallel  of  latitude 
including  San  Miguel,  and  on  the  east  by  the  coast  range  of  mountains. 

5.  The  district  of  IMonterey  is  bounded  on  the  south  by  the  district  of  San 
Luis  Obispo,  and  on  the  north  and  east  by  a  line  ninning  east  from  New  Year's 
Point  to  the  summit  of  the  Santa  Clara  range  of  mountains,  thence  along  the 
summit  of  that  range  to  the  Arroyo  de  los  Leagas,  and  a  parallel  of  latitude 
extending  to  the  summit  of  the  coast  range,  and  along  that  range  to  the  dis- 
trict of  San  Li;is  Obispo. 

6.  The  district  of  San  eJose  is  bounded  on  the  north  by  the  straits  of  Carque- 
nas,  the  bay  of  San  Francisco,  the  arroyo  of  San  Francisquito,  and  a  parallel 
of  latitude  to  the  summit  of  Santa  Clara  mountains,  on  the  west  and  south  by 
the  Santa  Clara  mountains  and  the  district  of  Monterej',  and  on  the  east  by  the 
coast  range. 

7.  The  district  of  San  Francisco  is  bounded  on  the  west  by  the  sea,  on  the 
south  by  the  districts  of  San  Jose  and  Monterey,  and  on  the  east  and  north  by 
the  bay  of  San  Francisco,  including  the  islands  in  that  bay. 

8.  The  district  of  Sonoma  includes  all  the  country  bounded  by  the  sea,  the 
bays  of  San  Francisco  and  Suisun,  the  Sacramento  river  and  Oregon. 

9.  The  district  of  Sacramento  is  bounded  on  the  north  and  west  by  the  Sac- 
ramento river,  on  the  east  by  the  Sierra  Nevada,  and  on  the  south  by  the 
Cosumnes  river, 

10.  The  district  of  San  Joaquin  inchides  all  the  country  south  of  the  Sacra- 
mento district,  and  lying  between  the  coast  range  and  the  Sierra  Nevada. 

The  method  hex'e  indicated  to  attain  what  is  desired  by  all,  viz.,  a  more  perfect 
political  organization,  is  deemed  the  most  direct  and  safe  that  can  be  adopted, 
and  one  fully  authorized  by  law.  It  is  the  course  advised  by  the  president,  and 
by  the  secretaries  of  state  and  of  war  of  the  United  States,  and  is  calculated  to 
avoid  the  innumerable  evils  which  must  necessarily  result  from  any  attempt  at 
illegal  local  legislation.  It  is  therefore  hoped  that  it  will  meet  the  apj)robation 
of  the  peoj)le  of  California,  and  that  all  good  citizens  will  unite  in  carrying  it 
into  execution. 

Given  at  Monterey,  California,  this  third  day  of  June,  a.  d.  one  thousand 
eight  hundred  and  fortv-nine. 

B.  RILEY, 

Brevet  Brig.-Geu.  U.  S.  A.,  and  Goveiuor  of  California. 
Ofiacial:  H.  W.  Halleck, 

Brevet  Capt.  auJ  St-cretarj'  of  State. 


II. 

PEOCLAMATION  TO  THE  PEOPLE  OF  CALIFOEXIA. 

xvii.    Const ih( lion  for  ratificaiion. 

The  delegates  of  the  people  assembled  in  convention  have  formed  a  constitu- 
tion, which  is  now  i:)resented  for  your  ratification.     The  time  and  manner  of 

37 


xvii-xix  PROCLAMATIONS  TO  THE  PEOPLE  OF  CALIFORNIA. 

voting  on  this  constitution,  and  of  holding  the  first  general  election,  are  clearly 
set  forth  in  the  sehedvile;  the  whole  subject  is  therefore  left  for  your  unbiased 
and  deliberate  consideration. 

The  prefect  (or  j^erson  exercising  the  functions  of  that  office)  of  each  district 
will  designate  the  places  for  oi:»ening  the  jdoIIs,  and  give  due  notice  of  the 
election,  in  accordance  with  the  provisions  of  the  constitution  and  schedule. 

The  people  are  now  called  upon  to  form  a  government  for  themselves,  and  to 
designate  such  otiicei-s  as  the}-  desire  to  make  and  execute  the  laws.  That  their 
choice  may  be  wisely  made,  and  that  the  government  so  organized  may  secure 
the  permanent  welfare  and  happiness  of  the  people  of  the  new  state,  is  the 
sincere  and  earnest  wish  of  the  present  executive,  who,  if  the  constitution  be 
ratified,  will,  with  pleasure,  surrender  his  powers  to  whomsoever  the  j)eople 
may  designate  as  his  successor. 

Griven  at  Monterey,  California,  this  twelfth  day  of  October,  a.  d.  one  thou- 
sand eight  hundi'ed  and  forty-nine. 

B.  RILEY, 
Brevet  Brig. -Gen.  U.  S.  A.,  and  Governor  of  California. 

Official:  H.  W.  K\xleck, 

Brevet  Capt.  and  Secretary  of  State. 


in. 

PEOCLAMATION  TO  THE  PEOPLE  OF  CALIFOENIA. 

xviii.  Resignation  of  General  Riley  as  governor  of  California. 

A  >EW  executive  having  been  elected  and  installed  into  office,  in  accordance 
with  the  provisions  of  the  constitution  of  the  State,  the  undersigned  hereby 
resigns  his  powers  as  governor  of  California.  In  thus  dissolving  his  official  con- 
nection with  the  people  of  this  country,  he  would  tender  to  them  his  heartfelt 
thanks  for  their  many  kind  attentions,  and  for  the  uniform  sup2:)ort  which  they 
have  given  to  the  measures  of  his  administration.  The  principal  object  of  all 
his  wishes  is  now^  accomplished — the  jjeople  have  a  government  of  their  own 
choice,  and  one  which,  under  the  favor  of  Divine  Pi'ovidence,  will  secure  their 
own  prosjierity  and  happiness,  and  the  permanent  welfare  of  the  new  state. 

Given  at  San  Jose,  California,  this  twentieth  day  of  December,  a.  d.  one 
thousand  eight  hundi'ed  and  fortv-nine. 

B.  RILEY, 
Brevet  Brig. -Gen.  U.  S.  A.,  and  Governor  of  California. 

By  the  Governor:  H.  W.  H.u.leck, 

Brevet  Capt,  and  Secretary  of  State. 

xix.    RelinquisJimoil  of  mililary  to  cicil  governvn^t. 

[OlSDKES  No.  41.") 

HEADQUABTEIta   TeWTH    JIiLITABT  DEPARTMENT, 

San  Jose,  Califok.nia,  Dec.  20,  )849. 

1.  Tlie  brigadier-general  commanding  the  department  has  this  day  relin- 
(juishcd  the  administration  of  civil  affaii-s  in  California,  to  the  execution  of  the 
government  organized  under  the  provisions  of  the  constitution,  ratified  by  the 
people  of  California  at  the  recent  general  election. 

2.  Brevet  Cai:)tain  H.  W.  Halleck,  coq^s  of  engineers,  is  relieved  from  duty 
as  seci'etary  of  state.  By  order  of 

GENERAL  RILEY. 
Ed.  U.  S.  Canby, 

Assistant  Adjutant-General. 

38 


(fon^titutioi!  of  tlje  State  of  (faljforuia. 

Adopted  by  the  Convention,  10th  October,  1849. 
Batified  by  the  People,  13th  November,  1S49. 
Proclaimed,  20th  December,  1849. 
Amended,  4th  November,  1850,  ajid  3d  September,  1862. 

XX.  Preamble. 

We,  the  people  of  California,  gi-ateful  to  Almighty  God  for  om-  freedom,  in 
order  to  secure  its  blessings,  do  establish  this  Constitution. 

ARTICLE  I. 

DECLARATION    OF    BIGHTS. 

Inalienable  riglds. 

Section  1.  All  men  are  by  nature  free  and  independent,  and  have  certain 
inalienable  rights,  among  which  are  tliose  of  enjoying  and  defending  life  and 
liberty;  acqniiing,  possessing,  and  protecting  ]3ro2)erty,  and  j^ursuing  and  ob- 
taining safety  and  happiness.^  *^ 

Popular  government. 

Sec.  2.  All  political  power  is  inherent  in  the  people.  Government  is  insti- 
tuted for  the  jDrotection,  security,  and  benefit  of  the  people,  and  they  have  the 
light  to  alter  or  reform  the  same  whenever  the  jJublic  good  may  requii-e  it. 

Jury  trial. 

Sec  3.  The  right  of  trial  by  jmy  shall  he  secured  to  all,  and  remain  invio- 
late forever;  but  a  jury  trial  may  be  waived  by  the  parties,  in  all  civil  cases,  in 
the  manner  to  be  prescribed  by  law.'"^ 
Religious  xvorship,  and  liberty  o/  conscience. 

Sec.  4.  The  free  exercise  and  enjoyment  of  religious  profession  and  worshij?, 
"without  disciimination  or  preference,  shall  forever  be  allowed  in  this  State;'"* 
and  no  person  shall  be  rendered  incompetent  to  be  a  witness  on  account  of  his 
opinions  on  matters  of  religious  belief;'"^'  but  the  libert}'  of  conscience  hereby 
secui-ed  shall  not  be  so  construed  as  to  excuse  acts  of  licentiousness,  or  justify 
practices  inconsistent  with  the  peace  or  safety  of  this  State. 

(a)  The  "Sunday  Law  "  of  April  10,  1858,  held  to  is  caUed,  it  must  consist  of  twelve  perpons:  alessnum- 

be  in  violation  of  this  section.    Ex  parte  Newman,  9  her  does  not  constitute  a  legal  jury  ^vithout  express  con- 

Cal.  502.  sent.   Oillesjiie  vs.  Benson,  18  Cal.  40'J. 

The  "  Sunday  Law  "  of  May  20,  1861,  held  to  be  not  A  court  has  no  jiower  to  send  an  ordinary  suit  at  law 

in  violation  of  this  section;  and  the  dissenting  opinion  to  a  reterec  for  trial  against  the  objection  of  either  par- 

of  Justice  Field  in  Ex  parte  Newman  aiioiHed.  Ex  parte  ty;  and  this  whether  the  suit  involves  the  exaniinatiou 

Andrews.  18  Cal.  G78.  of  a  long  account  or  not.     Our  statute  as  to  referring 

(6)   The  right  to  a  jury  trial  cannot  be  waived  by  im-  cases  (except  in  cases  of  consent)  applies  solely  to  equity 

plication.   Smith  vs.  Pollock.  2  Cal.  92.  causes.  Grim  vs.  Norris,  19  Cal.  1-JH. 

A  reference  to  ascertain  the  damages  sustained  by  (c)  The  " Siuulay  Law"  of  I.S.i.h  held  to  violate  this 

reason  of  an  injunction  does  not  \-iolate  this  section:  provision  on  the  gi-oinul  tliat  it  involved  the  ei. forced 

the  party  availing  himself  of  the  stringent  and  extra-  observance  of  a  day  held  saci  ed  by  a  religious  8>-ct  and 

ordinai-y  process  of  injunction  is  considered  as  waiving  was  a  discrimination  in  favor  of  that  sect  and  a  viola- 

his  constitutional  right  to  a  jury  trial.  Kussell  vs.  Elli-  tion  of  the  religious  freedom  of  others.  Ex  parte  New- 

ott,  2  Cal.  245.  man,  9  Cal.  502. 

The  words  "  prescribed  by  law  "  look  to  actual  legis-  'J  he  "  Sunday  Law  "  of  1861  (substantially  similar  to 

lation  iipon  the  subject,  and  cannot  be  extended  to  a  that  of  18581  hild  purely  a  ciWl  ngulation.  not  designed 

permission  of  the  exercise  of  the  power  to  others  than  to  subserve  any  religious  purpose .    Held  furthir.  th.it 

the  legislature    Exliue  vs.  Smith,  5  Cal   112.  the  constitution  does  not  make  void  legislation,  the  ef- 

The  language  of  this  provision  was  used  with  refer-  feet  of  which  is  to  iironn  te  religion  or  even  advance 

ence  to  the  right  as  it  exists  at  common  law.    The  right  the  interests  of  a  sect  or  class  of  religionists.   Ex  parte 

cannot  be  claimed  in  equity  cases  unless  an  issue  of  Andrews,  1m  Cal.  678. 

fact  be  framed.   Koppikus  vs.  State  Capitol  Conimis-  (d)  A  witness  is  competent  without  respect  to  bis  re- 

sioners.  16  Cal.  248.  ligious  sentiments  or  conviction- the  law  leaving  his 

Failure  on  the  part  of  a  party  to  appear  on  the  trial  competency  to  legal  sanctions  or  at  least  to  considera- 

of  a  civil  cause  operates  as  a  waiver  of  a  jury  trial  un-  tions  independent  of  religious  sentiments  or  convic- 

der  the  li9th  section  of  the  practice  act;  but  if  a  jury  tions.  Fuller  vs.  Fuller,  17  Cal.  005. 

39 


xxi  CONSTITUTION  OF  THE  STATE  OF  CALIFOKNIA. 

xxi.  Habea.^  co)-2)us. 

Sec.  5.  The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  susiDended, 
unless  Avhen,  in  cases  of  rebellion  or  invasion,  the  public  safety  may  require  its 
suspension.'"^ 

Exceiisive  bail,Jines,  cmd  2^uni)^]i7ncnts. 

Sec.  G.  Excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed;  nor 
shall  cruel  or  unusual  punishments  be  inflicted;  nor  shall  witnesses  be  unrep,- 
sonably  detained. 
All  offenses  bailable — one  exception. 

Sec  7,  All  persons  shall  be  bailable  by  sufficient  sureties,  unless  for  capital 
offenses  when  the  proof  is  evident  or  the  presumption  gi'eat/"^ 

Personal  rights  and  rights  of  property. 

Sec.  8.  No  person  shall  be  held  to  answer  for  a  capital  or  otherwise  infamous 
crime  (except  in  cases  of  impeachment,  and  in  cases  of  militia  when  in  actual 
service,  and  the  land  and  naval  forces  in  time  of  war,  or  which  this  state  may 
keep,  with  the  consent  of  cong'ress,  in  time  of  peace,  and  in  cases  of  petty 
larceny,  under  the  regailation  of  the  legislature),  unless  on  presentment  or 
indictment  of  a  grand  jury;'"^  and,  in  n.\\j  trial  in  any  court  w^iatever,  the  party 
accused  shall  be  allowed  to  appear  and  defend,  in  pei-son  and  with  counsel,  as 
in  civil  actions."^'  No  person  shall  be  subject  to  be  twice  put  in  jeopardy  for 
the  same  offense;'*"^  nor  shall  he  be  compelled,  in  any  criminal  case,  to  be  a  wit- 
ness against  himself  ;^'>  nor  be  deprived  of  life,  liberty  or  i^roperty  without  due 
process  of  law,'^'  nor  shall  private  property  be  taken  for  public  use  wdthout  just 
compensation.'"^ 


(a)  The  vivit  of  habeas  corpus  should  not  issue  to 
run  out  of  the  county,  unless  for  good  cause  shown,  as 
the  abKence,  disability  or  refusal  of  the  local  judge  to 
act.  The  mere  caprice  of  the  prisoner  ought  cot  to 
prevail  agaiust  the  interests  of  the  people  and  public 
cou\enience.     Ex  parte  Ellis,  11  Cal.  'll'l. 

'Ihe  issuance  of  the  writ  is  not  obligatory  upon  the 
supreme  court  in  term  time,  but  rests  in  the  sound 
legal  discretion  of  the  court,  ihough  its  allowance  may 
be  obligatory  upon  the  judges  in  their  individual  ca- 
pacities.   Id. 

(6)  Admissi  >u  to  bail  in  capital  cases,  where  the 
proof  is  evident  or  the  presumx)tioii  gi-eat,  may  be  for- 
bidden by  legislation;  but  in  all  other  c:ises,  admission 
to  bail  is  a  right  which  no  judge  or  court  can  xjroperly 
refuse.    People  vs.  Tinder,  li)  Cal.  539. 

The  provii-ion  tliat  bail  is  a  initter  of  right  contem- 
plates only  those  cases  in  which  the  jiarty  has  not  been 
alreidy  convicted.     Ex  parte  Voll,  41  Cal.  'i9 

((•)  The  273d  section  of  the  criminal  jjiMctice  act, 
directing  that  where  a  person  is  indicted  under  a  wrong 
name,  and  he  gives  )jis  true  name,  it  shall  be  entered 
on  tlie  minutes  and  the  ijrisoner  tried  under  his  true 
uaiiie  (see  Penal  Code,  sec.  iis'.)),  is  not  a  violaticm  of 
tills  clause.  The  meaning  of  this  provision  is  that  the 
jierson  shall  be  indicted,  not  the  person  by  his  tiue 
name,  but  the  person  himself.  People  vs.  Kelly,  6 
Cal   210. 

'J  he  grand  jury  should  be  constituted  according  to 
law,  but  the  objectinu  that  it  is  not  so  constituted  must 
be  made  at  the  particular  time  provided  by  statute. 
The  legislature  may  cipiistitulionally  prescribe  rules  of 
practice,  aud  among  these  is  the  provision  as  to  the 
lime  aud  mofle  of  excepting  to  in-egulariiies  of  pro- 
ceeding.   People  \f>.  Arno  d,  l.")  Cal.  47G. 

{<!)  Courts  liave  a  large  discretion  over  the  conduct 
of  procei  dings  before  them  aud  may  limit  arguments 
of  counsel  to  reasonabli-  time;  but  in  cuiiital  cases  this 
Bhould  be  done  only  in  v>  ry  extraonlinary  and  peculiar 
iiiBiaur-es.  The  opportunity  of  a  full  defense  is  a  con- 
stitutional right  without  which  a  prisoner  cann')t  be 
lawfully  con\ii-ted.     I'eople  vs.  Kei-nan,  13  Cal.  581. 

(')  On  a  Hecnnd  trial  for  murder  upon  tlie  same  or  a 
differi  nt  indictment,  defendant  <•  m  phail  a  conviction 
of  manslauglitcr  as  an  acquittal  of  the  crime  of  murder. 
A  conviction  of  mauslaugliter  is  an  iicijuittal  of  every 
offense  charged  in  tli<;  indictment  higher  than  the  par- 
ticular one  of  which  the  prisoner  is  found  guilty. 
People  vs.  Gilmore,  4  Cal.  37C. 

Tiiis  provision  was  never  intended  to  apply  to  cases 
in  which  a  judgment  of  conviction  was  reveraed  in  the 
oppellate  court  and  a  new  trial  ordered.    In  such  cases, 


it  bein^  apparent  from  the  judgment  of  reversal  that 
such  trial  was  erroneous,  the  defendant  in  fact  was  not 
in  jeopardy.  The  order  for  a  new  trial  places  the  party 
in  the  same  i)osition  as  though  no  trial  had  betn  had. 
People  vs.  March,  fi  Cal.  543. 

Where  uixju  a  previous  trial  it  turned  out  that  there 
was  a  uii>nomer  of  the  party  injured,  aud  thereupon 
the  indictment  was  discharged  and  the  new  indictment 
found:  Held,  that  the  accused  was  not  jjlaced  twice  iu 
jeopardy.  It  would  be  a  coutradiciiou  in  terms  to  say 
that  a  person  was  put  in  jeopardy  by  an  indictment 
under  which  he  could  not  be  con\irtcd,  and  it  is  ob- 
viously immaterial  wliether  the  iuability  to  convict 
arise  fi-om  a  vaiiance  between  the  proof  and  indict- 
ment or  from  some  defect  in  the  indictment.  People 
vs.  McNeily,  17  Cal.  332. 

If  a  person  charged  with  crime  has  once  been  ae- 
qui  ttd  by  the  veraict  of  a  jury  he  cannot  be  held  to 
answer  again  for  the  same  ofl'ense,  no  matter  by  what 
mistakes  or  errors  on  the  part  of  the  court,  jury  or 
prosecution  the  acquittal  was  obtained.  People  VS'. 
Webb,  38  Cal.  407. 

When  a  iierson  is  placed  on  trial  upon  a  valid  indict- 
ment before  a  competent  court  and  jury,  he  is  "  iu 
jeopardy"  within  the  meaning  of  the  constitution. 
People  vs.  Cage,  4S!  Cal.  323. 

(/)  A  witness  is  not  privileged  from  answering  on 
the  ground  that  his  answer  would  disgrace  him,  but 
Solely  on  the  ground  that  he  is  not  compelled  to  crim- 
inate himself.     Ex  parte  Howe,  7  Cal.  184. 

[ij)  The  provisions  of  the  31st  section  of  the  practi^-e 
act  authorizing  judgment  against  an  absent  defendant, 
fur  whom  the  cotirt  has  apiiointed  an  attorney  with 
lirivilege  of  coming  and  opening  it  in  six  months,  is 
not  in  violation  of  this  clause.  Ware  vs.  Robinson,  9 
Cal.  107. 

The  riyht  to  i)ractice  law  is  not  "  pr^jperty"  within 
the  constitutional  meaning  of  the  term.  The  act  of 
25th  April.  1803,  nquiring  attorneys  and  litigants  to 
file  affidavits  of  allegiance  to  the  government,  does  not 
contravene  this  provision.  Cohen  vs.  Wright,  22  Cal, 
2U3. 

Tills  provision  is  not  applicable  to  proceedings  by 
the  state  to  obtain  from  citizens  their  proper  contribu- 
tions to  the  expenses  of  administering  the  govermnent. 
High  vs.  Slioemaker,  22  Cal.  303. 

(A)  The  destruction  of  a  building  to  stop  the  spread 
of  a  conflagration  cannot  bo  deemed  a  taking  of  private 
property  for  i)ublic  use  within  the  meaning  of  this 
clause.    Dunbar  vs.  San  Francisco,  1  Cal.  355. 

A  lot  of  land  in  the  harbor  of  San  Francisco,  lying 
within  the  line  of  a  street  laid  down  aud  recognized  by 


40 


CONSTITUTION  OF  THE  STATE  OF  CALIFORNIA,      xxi-xxii 

Liberty  of  speech  and  press,  and  law  of  libel. 

Sec.  9.  Every  citizen  may  freely  si^eak,  write,  and  puLlinli  his  sentiments  on 
all  subjects,  being  responsible  for  the  abuse  of  that  right;  and  no  law  shall  be 
2)assed  to  restrain  or  abridge  the  liberty  of  speech  or  of  the  press.  In  all  crim- 
inal prosecutions  on  indictments  for  libels,  the  truth  may  be  given  in  evidence 
to  the  jury;  and  if  it  shall  appear  to  the  jury  that  the  matter  charged  as  libelous 
is  true,  and  was  published  with  good  motives  and  for  justifiable  ends,  the  party 
sh'all  be  acquitted;  and  the  jury  shall  have  the  right  to  determine  the  law  and 
the  fact. 

xxii.  Popular  assemblies. 

Sec.  10.  The  people  shall  have  the  right  freely  to  assemble  together  to  con- 
sult for  the  common  good,  to  instruct  their  representatives,  and  to  petition  the 
legislature  for  redress  of  grievances. 

Uniformitij  of  general  laivs. 
Sec.  11.  All  laws  of  a  general  nature  shall  have  a  uniform  operation. ^"^ 


tlie  city  on  its  oSicial  map,  and  being  in  the  actual  pos- 
eessioii  of  a  person  claiming  lo  be  the  owner,  cannot 
be  tHken  and  appropriated  to  public  use  by  the  city 
without  payment  of  just  compensation,  there  being  no 
title  t')  the  land  in  the  city.  Gunti-r  vs.  Geary,  1  Cal. 
4U2;  Surocco  vs.  Geary,  3  Cal.  09. 

Where  i)rivate  property  is  appropriated  to  public  use 
by  supervisors,  without  makiug  proviyion  for  paying 
for  tlie  same,  such  act  is  illegal  and  may  be  enjoined. 
Mc(  ann  vs.  Sierra  County,  7  Cal.  12!. 

Parties  in  possession  of  land  claiming  title  thereto 
are  presumed  to  be  the  owners,  and  are  entitled  to  com- 
pensation before  it  can  be  taken  for  public  uses.  Sac- 
rame..to  Valley  Kailroad  Company  vs.  Mofl'att,  7  Cal. 
577. 

A  municipal  corporation  cannot  take  private  property 
for  public  use  without  makiug  compensation  in  ad- 
vance or  providing  a  fund  out  of  which  compensation 
shall  be  made  as  soon  as  the  amount  to  be  paid  can  be 
determined.   Colton  vs.  Kossi,  9  Cal.  59.5. 

The  means  of  compensating  the  owner  must  be  pro- 
vided before  the  property  is  taken.  McCauley  vs. 
AVeller.  12  Cal.  &00;  Bensley  vs.  Moimtain  Lake  Water 
Company,  13  Cal.  306. 

Where  compensation  for  land  taken  by  a  county  for 
IJublic  use  does  not  precede  or  accompany  the  taking, 
the  entire  action  of  the  county  authorities  is  void;  and 
in  such  case  a  .'<uit  against  the  county  for  the  compen- 
sation does  not  lie.  Johnson  vs.  Alameda  County,  14 
Cal.  loo. 

If  ihe  use  for  which  the  property  is  taken  be  to 
satisfy  a  great  public  want  or  public  exigency,  it  is  a 
public  use  within  the  meaning  of  the  constitution,  and 
the  state  is  not  limited  to  any  given  mode  of  applying 
tlie  proj)erty  to  satisfy  the  want  or  meet  the  exigency. 
Gilmci-  vs.  Lime  Pomt,  18  Cal.  229. 

The  use  of  land  for  railroad  purposes  is  aptiblic  use. 
Contra  Costa  Railroad  Co.  vs.  Moss,  23  Cal.  323. 

A  statute  divesting  the  title  of  a  purchaser  of  prop- 
erty which  had  been  previously  mortgaged  by  fore- 
closure proceedings,  to  which  the  purchaser  was  a 
stranger,  would  be  unconstitutional.  Skinner  vs.  Buck, 
29  Cal.  2r)3. 

A  statute  validating  and  confirming  a  contract  pre- 
viously made  in  good  faith  but  not  in  the  precise  mode 
prescribed  by  the  existing  law  (such  as  a  deed  by  the 
attorney  in  fact  of  a  married  woman  before  she  was 
a\lo\yi'd  to  make  a  i^ower  of  attorney)  does  not  operate 
to  rtivi'st  vested  rights,  and  is  not  tlierefore  unconsti- 
tuti.iual.    Deutzel  vs.  Waldie.  30  Cal.  138. 

Land  is  not  '•  takt  n  for  i^ublic  use"  xmtil  the  last  act 
has  been  performed  which,  umler  the  mode  of  condem- 
nation adopted,  is  required  to  transfer  the  title  or  sub- 
ject ii  to  the  servitude.  Fox  vs.  Western  Pacific  R.  R. 
Co.,  31  Cal.  .538. 

An  act  providing  that,  in  assessing  the  value  of  land 
takm  for  a  railroad,  allowance  shall  be  made  for  any 
benefit  that  will  accrue  to  the  person  whose  land  is 
taken,  is  not  unconstitutii  nal.  San  Francisco,  A.  &  S. 
R.  R.  Co.  vB   Caldwell,  31  Cal.  3G7. 

Land  may  be  taken  under  the  power  of  eminent  do- 
main for  what  is  called  in  the  statutes  a  "  private 
road."   Sherman  vs.  buick,  32  Cal.  241. 

This  clause  has  no  application   to  assessments  for 

street  work  in  San  rraiic:sco  under  the  consolidation 

act  as  amended  in  186:^  or  1803.    Chambers  vs.  Satterlee, 

40  Cal.  49;. 

The  "  public  use  "  mentioned  in  the  constitution  is 


left   in    large  measure  to  legislative    determination. 
Stockton  &  Visalla  R.  R.  Co.  vs.  Stockton,  41  Cal.  149. 

An  act  requiring  persons  claiming  compensation  for 
land  to  be  taken  for  alteration  of  a  public  road  to  pre- 
sent their  claims  within  a  certain  time,  or  be  deemed 
as  waiving  all  right  to  damages,  does  not  violate  this 
clause.    Potter  vs:  Ames,  43  Cal.  15. 

An  act  providing  that  a  railroad  company  may  occupy 
or  use  land  pending  proceedings  to  condemn  it,  with- 
out  providing  compensation  for  the  use  and  waste 
thereof  if  the  proceedings  fail,  is  in  violation  of  the 
constitution.  Davis  vs.  San  Lorenzo  R.  R.  Co.,  47  Cal. 
517. 

( a)  The  revenue  act  of  May  18, 1853,  does  not  violate 
this  section.  By  "  uniform  operation  "  it  was  intended 
that  laws  of  this  character  should,  as  nearly  as  possi- 
ble, aflect  persons  and  ])roperty  alike.  A  perfectly 
equal  tax  law  is  impossible  from  the  very  natiure  of  the 
subject.   People  vs.  Coleman,  4  Cal.  40. 

An  act  regulating  fees  in  office  is  not  an  act  of  a  gen- 
eral nature;  henoe  a  fee  bill  tor  a  stpitrate  county  is 
not  in  violation  of  this  section.  Ryan  vs.  Johnson,  5 
Cal.  80. 

Act  to  remedy  the  failure  of  a  tax  collector  to  publish 
names  of  owners  and  lists  of  property  is  not  general 
but  special  in  its  natiu-e.  Moore  vs.  Patch,  12  Cal.  205. 
The  word  "uniform"  does  not  mean  -'universal." 
The  constitution  is  violated  only  when  a  privilege  ex- 
tended to  one  is  denied  to  another  on  substantially  the 
same  facts.  Smith  vs.  Judge  of  Twelfth  District  Court, 
17  Cal.  547. 

This  provision  is  not  violated  by  the  "  Sunday  Law" 
of  1861.   Ex  parte  Andrews,  18  Cal.  678. 

The  act  of  May  3, 1852,  providing  for  the  appointment 
of  a  ganger  at  the  port  of  San  Francisco,  is  constitu- 
tional. It  is  not  a  general  but  a  special  law.  Addison 
vs.  Saulnier,  19  Cal.  82. 

An  act  allowing  a  percentage  to  be  taxed  as  costs  in 
litigated  cases,  though  made  applicable  to  one  county 
alone,  operates  equally  and  uniformly  upon  all  parties 
in  the  same  category  and  is  not  unconstitutional.  Cor- 
win  vs.  Ward,  35  Cal.  195. 

This  clause  means  that  every  law  shall  have  a  uni- 
form operation  upon  all  the  citizens  or  persons  or 
things  of  any  class  upon  which  it  purports  to  take  ef- 
fect and  that  it  shall  not  grant  to  any  citi/en  or  class  of 
citizens  privileges  which  upon  the  same  terms  shall 
not  equally  belong  to  other  citizens.  Brooks  vs.  Hyde, 
37  Cal.  300. 

A  city  ordinance  to  prohibit  noisy  amusements  and 
prevent  immorality  is  not,  on  account  of  its  local  oper- 
ation, repugnant  to  the  constitution.  Ex  parte  Smith 
and  Keating,  38  Cal.  702. 

The  constitution  does  not  require  laws  to  have  a  uni- 
form operation  unless  tlicyareof  a  general  nature;  and 
whether  a  law  is  of  a  general  or  special  nature  deijends, 
in  a  measure,  upon  the  legislative  purpose  discernible 
in  its  enactment.  People  vs.  Central  Pacific  E.  K.  Co., 
43  Cal.  398. 

The  constitution  does  not  prohibit  a  sprcial  act  be- 
cause the  subject  with  which  it  deals  might  have  been 
the  subject  of  a  general  law.  People  vs.  Central  Pacific 
R.  R.  Co.,  43  Cal.  398. 

An  act  for  securing  mechanics'  liens,  which  fails  to 
give  to  laborers  otht  r  than  those  working  on  mining 
claims  a  lien,  is  not  for  that  reason  unconstitutional. 
Quale  vs.  Moon,  48  Cal.  478. 


41 


xxii-xxiv    CONSTITUTION  OF  THE  STATE  OF  CALIFORNIA. 

MU'dary  poiurr. 

Sec.  12.  The  military  shall  be  subordinate  to  the  civil  power.  No  standing 
army  shall  be  kept  up  by  this  state  in  time  of  peace;  and,  in  time  of  war,  no 
appropriation  for  a  standing  army  shall  be  for  a  longer  time  than  two  years. 

Quarteri)}g  of  soldiers. 

Sec.  13.  No  soldier  shall,  in  time  of  peace,  be  quartered  in  any  house  without 
the  consent  of  the  owner;  nor  in  time  of  war,  excej^t  in  the  manner  to  be  pre- 
scribed hy  law. 
Iiep7'esenfatio7i. 

Sec  14.  Representation  shall  be  apiDortioned  according  to  population. 

xxiii.  Imprisonment  for  debt. 

Sec.  15.  No  person  shall  be  imprisoned  for  debt  in  any  civil  action,  on  mesne 
or  final  process,  unless  in  cases  of  fraud;*"'  and  no  person  shall  be  imprisoned 
for  a  militia  fine  in  time  of  peace. 

Laws  prohibited. 

Sec.  1G.  No  bill  of  attainder,  ex  post  facto  law,  or  law  impairing  the  obliga- 
tion of  contracts,  shall  ever  be  passed. *''' 

Rights  of  foreigners. 

Sec  17.  Foreigners  who  are  or  who  may  hereafter  become  bona  fide  residents 
of  this  state,  shall  enjoy  the  same  rights  in  resjDcct  to  the  possession,  enjoyment 
and  inheritance  of  propert}',  as  native  born  citizens.^"' 

Slavery  proldbited. 

Sec  18.  Neither  slavery  nor  involuntary  servitude,  unless  for  the  punish- 
ment of  crime,  shall  ever  be  tolerated  in  this  state. 
Search  warrants. 

Sec.  19.  The  right  of  the  people  to  be  secure  in  their  persons,  houses,  papers 
and  effects,  against  unreasonable  seizures  and  searches,  shall  not  be  violated; 
and  no  warrant  shall  issue,  but  for  probable  cause,  suj^ported  by  oath  or  affir- 
mation, particularly  describing  the  place  to  be  searched  and  the  persons  and 
things  to  be  seized. 

xxiv.   Treason  defined,  and  hoiv  punished. 

Sec  20.  Treason  against  the  state  shall  consist  only  in  levying  war  against  it, 


(a)  In  a  suit  to  recover  money  received  by  a  person  (r)  A  British  seaman  on  board  a  British  vessel  of 

as  agent,  he  cannot  be  arrested  without  showing  some  which  a  British  8ul)ject  is  master  may,  when  <'ischarged 

fraudulent  conduct  on  his  part.   Ex  parte  Holdforth,  1  in  a  port  of  this  state  without  any  fault  on  his  iiart,  sue 

Cal.  i'M.  lor  and  recover  his  wages  in  a  state  coui-t.   Pugh  vs. 

A  party  cannot  be  inii)risoned  under  a  judgment  in  a  Gillani,  1  Cal  48'>. 

civil  action  for  assault  and  battery.   Ex  parte  Prader,  .\n  alien  may  purchase  and  hold  land  and  make  leases 

C  Cal.  2;i9.  and  sustain  actions  till  "ollice  found, "and  proof  of  his 

{Ij)  The  act  of  April  15, 1851,  re-incorporating  the  city  alienage  cannot  be  made  available  in  a  collateral  yro- 
of  Han  Francisco,  did  not  extinguisli  the  debts  of  the  ceeding.   Ramires  vs.  Kent,  2  Cal.  558. 
city  incujTi.d  under  the  former  charter,  nor  did  its  prop-  An  alien  may  hold  real  estate  against  every  one  and 
erty  escheat  to  the  state.     An  act  passed  with  such  in-  even  against  the  government  until  "  office  found."  At- 
tention would  be  unconstitutional.   Smith  vs.  Morse,  2  torney  General  vs.  Eolsom,  5  Cal.  373. 
Cal.  524.  Held  that  a  non-resident  alien  cannot  inherit  land  in 

The  suspension  by  statute  of  remedies  or  any  part  this  state.  Siemsen  vs.  Bofi;r,  0  Cal.  250;  Norrisvs.  Hoyt, 

thereof  existing  when  the  contract  was  made  is  more  18  Cal.  217. 

or  less  impairing  the  obligation  of  the  contract.  Thome  This  section  leaves  the  right  of  non-resident  foreign- 

vs.  Hays,  4  Cal.  127.  era  in  respect  to  real  properly  as  it  exists  at  common 

The  4Ist  section  of  the  act  concerning  conveyances,  law.   Farrell  vs.  Enriglit,  12  Cal   450. 

requiring  conveyances  made  before  the  passage  of  the  The  act  of   April  19,  185fi,  permitting  non-resident 

act  to  be  recorded,  does  not  imi)air  the  obligation  of  a  alicn.s  to  inherit,  is  constitutional;  and  the  right  of 

contract.   Stafford  vs.  Lick,  7  Cal.  47U.  bona  fide  resident  aliens  maybe  enlarged  but  cannot 

The  jirovisioiiB  of  the  "  Corisolidation  Act"  of  San  be  abridged  by  the  legislature.   People  vs.  Kogers,  13 

Francisco,  requiring  the  sinking  fund  <-reated  by  act  of  Cal.  1.59. 

1851  to  be  first  exhausted  by  redemption  of  certificates  By  virtue  of  its  police  power  the  state  possesses  juris- 

of  stock,  bifore  the  treasurer  should  make   payment  diction  to  arrest  and  restrain  fugitive  slaves  and  to  re- 

annually  of  .?50,000,  set  apart  by  act  of  1851  for  payment  move  them  from  its  borders,  but  not  so  as  to  obstruct 

of   interest,  etc..  are  unconstitutional    as  violating  a  the  owner  in  reclaiming  his  slave.   Ex  parte  Perliius,  2 

contract.   Tullant  vs.  Woods,  7  Cal.  579.  Cal.  424. 

This  provision  in  regard  to  contracts  relates  to  con-  The  d<ictrine  of  "  comity,"  as  to  the  right  of  transit 

tracts  between  individuals  and  not  to  contracts  between  through  and  delay  with  slaves  in  the  state,  discussed, 

individuals  and  the  state.   Myers  vs.  Englisli.  9  Cal  341.  Ex  parte  Archy,  9  Cal.  147. 

The  riglit  to  practice  law  is  not  a  "contract"  and 
therefore  tlie  "  Test  Act "  does  not  violate  the  obliga- 
tion of  a  contract.  Cohen  vs.  Wright,  22  Cal.  293. 

42 


CONSTITUTION  OF  THE  STATE  OF  CALIFORNIA,    xxiv-xxv 

adlieriiig  to  its  enemies,  or  giving  tlicni  aid  and  comfort.  No  person  shall  be 
convicted  of  ti'eason,  unless  on  the  evidence  of  two  witnesses  to  the  same  overt 
act,  or  confession  in  open  court. 

Popular  rights  retained  Ijy  tlie  people. 

Sec.  21.  This  enumeration  of  rights  shall  not  be  constnied  to  impair  or  deny 
others  retained  by  the  people. 

Sec.  22.  The  legislature  shall  have  no  j^ower  to  make  an  appropriation,  for 
any  purpose  whatever,  for  a  longer  j)eriod  than  two  years.  {Aiae}uhiient,  pro- 
posed 1866;  ratified  Gth  September,  1871.*^' 

ARTICLE  11. 

RIGHT    OF    SUFFRAGE. 

XXV.   Who  are  or  may  he  electors. 

Section  1.  Eveiy  white  male  citizen  of  the  United  States,  and  eveiy  white 
male  citizen  of  Mexico  who  shall  have  elected  to  become  a  citizen  of  the  United 
States,  under  the  treat}'  of  peace  exchanged  and  ratified  at  Queretaro,  on  the 
thirteenth  day  of  May,  eighteen  hundred  and  forty-eight,  of  the  age  of  twenty- 
one  years,  who  shall  iiave  been  a  resident  of  the  state  six  months  next  preceding 
the  election,  and  the  county  or  district  in  which  he  claims  his  vote  thiriy  days, 
shall  be  entitled  to  vote  at  all  elections  w^hich  are  now  or  hereafter  may  be 
authorized  by  law;  provided,  that  nothing  herein  contained  shall  be  construed 
to  prevent  the  legislature,  by  a  two  thirds  concurrent  vote,  from  admitting  to 
the  right  of  suffrage  Indians,  or  the  descendants  of  Indians,  in  such  special 
cases  as  such  a  proportion  of  the  legislative  body  may  deem  just  and  proper. ^"^ 

Privileges  of  electors. 

Sec  2.  Electors  shall,  in  all  cases  excej^t  treason,  felony,  or  breach  of  the 
peace,  be  privileged  from  arrest  on  the  days  of  election,  during  their  attendance 
at  such,  election,  going  to  and  returning  therefrom. 

3Iilitia  duty. 

Sec.  3.  No  elector  shall  be  obliged  to  perform  militia  duty  on  the  day  of 
election,  except  in  time  of  war  or  public  danger. 
Residence. 

Sec.  4.  For  the  pui-pose  of  voting,  no  person  shall  be  deemed  to  have  gained 
or  lost  a  residence  by  reason  of  his  presence  or  absence  while  emi^loyed  in  the 
sen-ice  of  the  United  States  ;*'''  nor  while  engaged  in  the  navigation  of  the  waters 
of  this  State,  or  of  the  United  States,  or  of  the  high  seas;  nor  while  a  student 
of  any  seminary  of  learning;  nor  while  kept  at  any  almshouse,  or  other  asylum, 
at  i:)ublic  expense;  nor  while  confined  in  any  j)ublic  prison. 
Idiot,  insane  and  iv famous  persons. 

Sec.  5.  No  idiot  or  insane  person,   or  person  con%dcted  of    any  infamous 
crime,  shall  be  entitled  to  the  j^rivileges  of  an  elector. 
Ballot. 

Sec  6.  All  elections  by  the  people  shall  be  by  ballot. 


(a)  The  amendment  constituted  a  new  and  additional  (c)  The  mere  fact  that  a  man  is  a  soldier  in  the  TJni- 

section.  ted  States  army  does  not  disqualify  him  from  voting  in 

(h)   The  act  of  April  25, 1863,  providing  for  taking  the  tliis  state;  nor  does  a  mere  residcme  or  sojourn  in  the 

votes  of  California  volunteers  outside  of  the  couiities  country  as  a  soldier  make  a  man  a  citizen  or  prove  him 

of  their  legal  residence,  was  unconstitutional.   Bour-  BU('h.     The  fact  of  such  sojourn  or  residence  neither 

land  vs.  Hildreth,  2(j  Cal.  161;  Day  vs.  Jones,  31  Cal.  261.  creates  nor  destroys  citizenship.    Orman  vs.  Riley,  15 

Cal.  4S. 


43 


xxvi-  xxvii  CONSTITUTION  OF  THE  STATE  OF  CALIFORNIA. 

ARTICLE  III. 

DISTRIBUTION    OF    POWERS. 

xxvi.  Separate  deparlments. 

The  poAvers  of  the  government  of  the  State  of  California  shall  he  divided 
into  three  sejiarate  departments:  the  legislative,  the  executive,  and  judicial; 
and  no  person  charged  with  the  exercise  of  powers  properly  belonging  to  one 
of  these  departments,  shall  exercise  any  functions  appertaining  to  either  of  the 
others,  except  in  the  cases  hereinafter  expressly  directed  or  permitted.^"' 


ARTICLE  IV. 


LEGISLATIVE    DEPARTMENT 


C») 


xxvii.  Senate  and  assembly — Enacting  dam^e  of  laics. 

Section  1.  The  legislative  power  of  this  State  shall  be  vested  in  a  senate  and 
assembly,  which  shall  be  designated  the  legislature  of  the  State  of  California; 
and  the  enacting  clause  of  every  law  shall  be  as  follows:  "The  people  of  the 
State  of  California,  rej) resented  in  senate  and  assembly,  do  enact  as  follows." 
Sessions  of  legislature. 

»Sec.  2.  The  sessions  of  the  legislature  shall  be  biennial,  and  shall  commence 
on  the  first  Monday  of  December  next  ensuing  the  election  of  its  members, 
unless  the  governor  of  the  State  shall,  in  the  interim,  convene  the  legislature 
by  i3roclamation.  No  session  shall  continue  longer  than  one  hundred  and 
twent}'  days.     [Amendment,  proposed  18G1;  ralified  ^d  September,  1862. ^"^ 


(a)  The  legislature  lias  no  power  to  confer  other  than 
judiL-ial  functions  upon  the  court  of  sessions.  Burgoyne 
vs.  San  Francisco,  5  Cal.  9;  Phelan  vs.  San  Francisco,  6 
Cal.  531.  The  legislature  cannot  confer  upon  a  county 
judge  power  of  designating  place  and  manner  of  hold- 
ing an  election,  as  it  is  a  niiuisteiial  and  not  a  judicial 
act,  and  an  election  thus  held  will  be  void.  Dickey  vs. 
Hurlburt,  5  Cal.  Hi. 

Where  any  of  the  duties  or  powers  of  one  of  the  de- 
partments are  not  disponed  of  or  distributed  to  partic- 
ular officeis  of  that  department,  such  ijowers  or  duties 
aie  left  to  the  disposal  of  the  legislature.  Ross  vs. 
Wliitnian,  (i  Cal.  SCI. 

I'mm  the  necessity  of  the  case,  supervisors  exercise 
judicial,  legislative  and  executive  powers  in  matters 
relating  to  the  ijolice  and  fiscal  regulations  of  counties. 
People  vs   tl  Dorado  County,  «  Cal.  5«. 

Tlie  assessment  of  taxes  is  not  a  judicial  act,  and  can- 
not be  e.xercised  by  the  court  of  sessions.   10  Cal.  40i. 

The  constitution  does  not  place  either  department 
above  the  law,  nor  make  either  indeixnidi-nt  of  the 
other.  The  legisla'ure  can  pass  such  laws  as  it  may 
deem  exiiedi-nt.  subject  <jn]y  to  tlie  prohibitions  of  the 
constitution.  If  it  ovcrsti  ps  those  limits,  and  attempts 
to  impair  the  obli^'atiou  of  contracts,  or  to  pass  ex  post 
facto  laws,  or  grant  special  acts  of  incorpor^ttion  lor 
other  than  municipal  purposes,  the  judiciary  will  set 
aBi<le  its  legislation  and  protect  tlie  rights  it  has  as- 
sailed.  McCauley  vs.  brooks,  k;  Cal.  11. 

Nothing  in  the  constitution  prohibits  the  legislature 
from  declaring  the  mayor  of  a  city  to  be  ex  officio  a 
justice  of  the  peace.   Uridias  vs.  Morrill,  '22  Cal.  47:). 

This  article  refers  to  the  distribution  of  the  powers 
of  the  state  go\ernment  and  not  to  those  of  local  gov- 
ernments  created  by  the  legi^lature;  so  that  there  is 
liotliiug  in  it  to  prevent  the  police  jmlge  of  the  city 
and  county  of  San  Francisi-o  from  performing  the  du- 
ties of  the  office  of  jxilice  commissioner  as  an  ex  officio 
office.    People  vs.  Frovines,  :J4  Cal.  ."i'J). 

(fc)  The  constitution  is  not  to  be  regarded  as  a  grant 
of  power  but  rather  as  a  restriction  upon  tlie  ]io\vers  of 
the  legislature;  and  it  is  comp-tenl  for  the  legislature 
to  exercise  all  powers  not  foi  bidden  by  the  constitu- 
tion, or  di  legated  to  the  general  government,  or  pro- 
hibited by  the  United  States  constitution.  People  vs. 
Coleman,  4  Cal.  411;  People  VH  Bigler,  5  Cal   li. 

The  motives  of  the  legislatnre  in  passing  a  law  will 
not  be  inquired  into.   People  vs   Higler,  5  Cal  2;i. 

An  act  may  be  vo  d  in  part  for  its  unconstitutionality, 
and  good  so  far  as  it  is  constitutional.  People  vs.  Bur- 
bank,  VI  Cal.  ;i7H. 

Tne  legislature  cannot  require  the  supreme  court 
to  give  the  reasons  of  its  decisions  in  writing     The 


constitutional  duty  of  the  coui  t  is  discharged  by  the 
renditions  of  its  decisions.  Houston  vs.  Williams,  13 
Cal.  24. 

'1  he  constitution  is  not  a  grant  but  a  restriction  upon 
the  ijower  of  the  legislature,  and  hence  an  express 
enumeration  of  legislative  jjowers  and  privileges  therein 
cannot  be  considered  as  the  exclusion  of  others  not 
named,  unless  accomjianied  by  negative  terms.  Ex 
parte  McCarthy,  2'.t  Cal.  Mi."). 

The  legislature  has  no  power  to  legalize  defective 
pleadings  in  i)endiug  actions.  People  vs.  Marii^osa 
Company,  31  Cal.  19G. 

It  is  not  within  the  constitutional  power  of  the  state 
legislature  to  confer  juris  lictiou  upon  federal  courts  or 
prescribe  the  means  or  mode  of  its  exercise.  Greely 
vs.  Townseiid,  2.3  Cal.  OiU. 

All  act  of  the  legii^hiture  granting  a  new  trial  or  re- 
opening a  juilgnient  in  favor  of  the  peoiile.  in  a  civil 
action  in  which  the  people  are  a  parly,  is  a  mere  con- 
sent on  the  part  of  the  leojile,  one  of  the  parties,  that 
a  new  trial  be  granted  or  the  judgment  reopened  and  is 
not  tmconstitutional.    People  vs.  Frisbie,  21!  Cal.  135. 

Whire  a  new  county  is  erected  out  of  territory  taken 
in  part  from  another  county,  the  legislature  has  the 
power  to  create  a  board  of  commissioners  to  ascertain, 
settle  and  report  the  amount  due  from  (me  to  the  other 
and  to  comijel  the  supervisors  ot  the  county  indebted 
to  levy  a  tax  to  pay  tlie  amount  so  reported  due.  Peo- 
ple vs.  Alameda  County.  2(1  Cal.  041. 

The  le^^islature  can  delegate  to  a  board  of  supervisors 
power  to  mak'!  an  order  to  prevent  the  carrying  on  of 
an  offensive  trade,  i)rejudiiial  to  imblic  health,  within 
the  limits  of  a  city.   Kx  parte  Shrader,  33  Cal.  271). 

The  legislature  cannot  delegate  the  jiower  to  make 
laws.  Conferred  upon  it  by  tim  constitution,  to  the  peo- 
ple of  the  state  or  to  auv  portion  of  the  people.  Es 
parte  Wall,  48  Cal.  279. 

The  legisl.iture  has  no  power  to  refer  a  statute  to  the 
p('ople  to  decide  by  a  iiojjular  vote  whether  it  shall  go 
into  effect.   Ex  parte  Wall,  4H  Cal.  279. 

A  law  whidi  submits  to  a  popular  vote  of  the  electors 
of  a  county  the  <iue>tion  whether  certain  territory  of  an 
adjoining  county  shall  be  annexed  to  it  and  that  if  such 
vote  should  be  in  the  afhrmative  the  adjoining  county 
should  be  disorganized  and  the  territory  annexed,  is 
not  unconstitutional.  People  vs.  Nally,  49  Cal.  478. 
(c)  Tlie  original  secticm  was  as  follows: 
Skc.  2.  The  sessions  of  the  legislature  shall  be  annual, 
and  shall  commence  on  tlie  first  Monday  of  January, 
next  ensuing  the  election  of  its  members,  unless  the 
governor  of  the  state  sliall,  in  the  interim,  convene  the 
legislature  by  proclamation. 


44 


CONSTITUTION  OF  THE  STATE  OP  CALIFORNIA,  xxvii-xxix 

Election  and  terms  of  assemblymen. 

Sec.  3.  The  members  of  tlie  assembly  shall  be  chosen  biennially,  by  tlio 
qi-ialified  electors  of  their  respective  districts,  on  the  first  "Wednesday  in  Sep- 
tember, unless  otherwise  ordered  by  the  legislature,  and  their  term  of  otKco 
shall  be  two  years.     [Amendment,  proposed  1861;  ratified  ^d  September,  1802.*"' 
QtinlificatioviS  of  leijii^lators. 

Sec.  4.  Senators  and  memT)ers  of  assembly  shall  be  duly  qualified  electors  in 
the  respective  counties  and  districts  which  they  represent. 
xxviii.   Election  and  ter^ms  of  senators. 

Sec.  5.  Senators  shall  be  chosen  for  the  term  of  four  years,  at  the  same  time 
and  places  as  members  of  assembly;  and  no  person  shall  be  a  member  of  the 
senate,  or  assembly,  who  has  not  been  a  citizen  and  inhabitant  of  the  State,  and 
of  the  county,  or  district,  for  which  he  shall  be  chosen,  one  year  next  before 
his  election.     [Amendmejit,  proposed  1861  ;  ratified  Sd  September,  1862.*''' 

Number  and  classes  of  senato7's. 

Sec.  0.  The  number  of  senators  shall  not  be  less  than  one  third,  nor  more 
than  one  half,  of  that  of  the  members  of  assembly;  and  at  the  first  session  of 
the  legi.slature  after  this  section  takes  efiect,  the  senators  shall  be  divided  by 
lot,  as  equally  as  may  be,  into  two  classes.  The  seats  of  the  senators  of  the  first 
class  shall  be  vacated  at  the  expiration  of  the  second  year,  so  that  one  half  shall 
be  chosen  biennially.    [Amendmeiit,  proposed  1861  ;  ratified  'dd  September ,  1862.*"' 

Increase  in  number. 

Sec.  7.  When  the  number  of  senators  is  increased,  they  shall  be  appointed 
by  lot,  so  as  to  keep  the  two  classes  as  nearly  equal  in  number  as  possible. 
Organization  of  legislative  houses. 

Sec.  8.  Each  house  shall  choose  its  own  officers,  and  judge  of  the  qualifica- 
tions, elections,  and  returns  of  its  own  members. 
Quorum. 

Sec.  9.  A  majority  of  each  house  shall  constitute  a  quoram  to  do  biisiness; 
but  a  smaller  number  may  adjourn  from  day  to  day,  and  may  compel  the  attend- 
ance of  absent  members,  in  such  manner,  and  under  such  penalties,  as  each 
house  may  provide. 

xxix.   Rules — Expxdsions. 

Sec.  10.  Each  house  shall  determine  the  rules  of  its  own  proceedings,  and 
may,  with  the  concurrence  of  two  thirds  of  all  the  members  elected,  expel  a 
member. 

Journals. 

Sec.  11.  Each  house  shall  keejj  a  journal  of  its  own  proceedings,  and  pub- 
lish the  same;  and  the  yeas  and  nays  of  the  members  of  either  house,  on  any 
question,  shall,  at  the  desire  of  any  three  members  present,  be  entered  on  the 
journal. 

Privileges  of  legislators. 

Sec.  12.  Members  of  the  legislature  shall,  in  all  cases  except  treason,  felony, 
and  brejich  of  the  peace,  be  privileged  from  arrest,  and  the}'  shall  not  be  sub- 
fa)   Original  section:  vhich  he  shall  be  chosen  six  months  next  before  his 
Sec.  3.   The  members  of  the  assembly  shall  be  choRen  election, 
annually,  by  the  qualified  electors  of  their  respective  (r)   Original  section: 

districts,  on  the  Tuesday  next  after  the  firt-t  Monday  Sec.  C.    The  number  of  senators  shall  not  be  less 

in  November,  imless  otherwise  ordered  by  the  legisla-  than  one  third,  nor  more  tlian  one  half,  of  that  of  the 

ture,  and  their  term  of  office  shall  be  one  year.  members  of  assembly;  and  at  the  first  session  of  the 

(b)  Original  section:  legislature  after  iliis  couftitution  tai-es  eflect,  the  sen- 

Sec.  5.  Senators  shall  be  chosen  for  the  term  of  two  ntors  shall  be  divided  by  lot  as  equally  as  may  be,  into 

years,  at  the  same  time  and  places  as  members  of  as-  two  classes;  the  seats  of  the  senators  of  the  first  class 

sembly;  and  no  person  shallbe  a  member  of  the  senate  shall  be  vacati  d  at  the  expiration  of  the  first  year,  so 

or  assembly  who  has  not  been  a  citizen  and  inhabitant  that  one  half  shall  be  chosen  annually, 
of  the  state  one  year,  ^nd  of  the  county  or  district  for 

45 


xxix-sxx    CONSTITUTION  OF  THE  STATE  OF  CALIFORNIA. 

ject  to  any  civil  process  during-  the  session  of  tlie  legislature,  nor  for  fifteen 
days  next  before  the  commencement  and  after  the  termination  of  each  session. 

Vacancies. 

Sec.  13.  When  vacancies  occur  in  either  house,  the  governor,  or  the  person 
exercising  the  functions  of  the  governor,  shall  issue  writs  of  elections  to  fill 
such  vacancies. 

Open  doors. 

Sec.  14.  The  doors  of  each  house  shall  be  open,  except  on  such  occasions  as, 
in  the  opinion  of  the  house,  may  require  secrecy. 

XXX.  Adjournments. 

Sec.  15.  Neither  house  shall,  without  the  consent  of  the  other,  adjourn  for 
more  than  three  days,  nor  to  any  other  place  than  that  in  which  they  may  be 
sitting. 

Origination  of  bills. 

Sec  16.  Any  bill  may  originate  in  either  house  of  the  legislature,  and  all 
bills  passed  by  one  house  may  be  amended  in  the  other. 

Governor's  approval — Passage  of  bills  notwithstanding  governor's  objections. 

Sec.  17.  Every  bill  which  may  have  passed  the  legislature,  shall,  before  it 
becomes  a  law,  be  presented  to  the  governor.  If  he  approve  it,  he  shall  sign 
it;  but  if  not,  he  shall  return  it,  with  his  objections,  to  the  house  in  which  it 
originated,  which  shall  enter  the  same  upon  the  journal,  and  proceed  to  recon- 
sider it.  If,  after  such  reconsideration,  it  again  pass  both  houses,  by  yeas  and 
nays,  by  a  majority  of  two  thirds  of  the  members  of  each  house  present,  it 
shall  become  a  law,  notwithstanding  the  governor's  objections.  If  any  bill  shall 
not  be  returned  within  ten  days  after  it  shall  have  been  presented  to  him  (Sun- 
days excepted),  the  same  shall  be  a  law,  in  like  manner  as  if  he  had  signed  it, 
unless  the  legislature,  by  adjournment,  prevent  such  return. ^"^ 

Impeachments. 

Sec  18.  The  assembly  shall  have  the  sole  poAver  of  impeachment;  and  all 
impeachments  shall  be  tried  b}'  the  senate.  When  sitting  for  that  purpose,  the 
senatoi's  shall  be  upon  oath  or  affirmation;  and  no  j^erson  shall  be  convicted, 
without  the  concurrence  of  two  thirds  of  the  members  present. 

Officers  liable  to  impeachment — Judgment. 

Sec.  19.  The  governor,  lieutenant-governor,  secretaiy  of  state,  controller, 
treasurer,  attorney-general,  surveyor-general,  justices  of  the  supreme  coui-t, 
and  judges  of  the  district  courts,  shall  be  liable  to  imiieachment  for  any  mis- 
demeancn'  in  ofiice;  but  judgment  in  such  cases  shall  extend  only  to  removal 
from  office,  and  disqualification  to  hold  any  ofiice  of  honor,  trust,  or  profit, 
under  the  state;  but  the  party  convicted  or  acquitted  shall  nevertheless  be  liable 
to  indictment,  trial,  and  punishment,  according  to  law.  All  other  civil  oflicers 
shall  be  tried,  for  misdemeanors  in  ofiice,  in  such  a  manner  as  the  legislature 
may  provide. 

(o)  The  court  may  go  behind  the  record  evidence  of  which  the  bill  Is  presented  to  the  governor.  Price  vs. 

a  fstattitc,  and  inquire  whether  it  was  passed  or  ap-  Whitman,  H  Cal.  412. 

proved  in  accordance  with  the  conBtitufion.    Fowler  Wlicre  the  governor  Kcut  a  bill  with  his  objections  to 

vs.  Peircc,  2  Cal.  Ifi.'i.  the  house  in  wliich  it  orlj^'iuated  on  tlie  last  of  the  tea 

In  approving  a  statute,  the  executive  acts  as  a  com-  days,  and,  on  ac(;ouiit  of  an  adjournment  of  the  house 

pon»*nt  \>hrt  of  the  law-malting  power,  and  his  power  for  the  day,  tlie  bill  was  re-delivered  to  tlie  (,'overnor 

of  aijproval  ceases  on  the   adjournment  of   the  legis-  and  retained  by  him:  Held,  that  it  was  not  returned 

latui  c.   Id  within  ten  dajH  « ithin  the  meaning?  ol  the  constitution. 

In  nearly  all  the  printed  copies  of  the  constitution  HarpenditiK  vk.  Haight,  '.i'J  Cal.  IW). 

there  is  a  mistake  in  the  omission  of  the  final  leiter  In  computing  the  tiu  days  witliin  which  a  bill  may 

"  s"  in  the  word  "  Sundays."    'I  he  erroneous  decisirm  be  returned  by  the  governor,  the  day  on  which  it  is 

in  Hepburn  vs.  Whitman,  0  Cal.  (i.i'.),  was  based  upon  jirif-cutcd  to  the   governor  must  be   excluded.    Iron 

this  mistake.     See  I'rice  vs.  Whitman.  8  Cal.  412.     The  Mountain  Co.  vs.  Haight,  30  Cal.  54(J. 
ten  days  must  be  computed  by  excluding  the  day  on 

4G 


CONSTITUTION  OF  THE  STATE  OF  CALIFORNIA,  xxxi-xxxii 

xxxi,  DisahiUdes  of  Icgidalors. 

Sec.  20.  No  senator,  or  member  of  assembly,  shall,  during  the  term  for  which 
he  shall  have  been  elected,  be  appointed  to  any  civil  office  of  profit,  under  this 
state,  which  shall  have  been  created,  or  the  emoluments  of  which  shall  have 
been  increased,  during  such  term,  except  such  o£&ce  as  may  be  filled  by  elections 
by  the  people. 

Ineligibility  to  office — Proviso. 

Sf.c.  21.  No  person  holding  any  lucrative  office  luider  the  United  States,  or 
any  other  power,  shall  be  eligible  to  any  civil  office  of  profit  under  this  state; 
provided,  that  officers  in  the  militia,  to  which  there  is  attached  no  annual  salaiy, 
or  local  officers  and  postmasters  whose  compensation  does  not  exceed  five  hun- 
dred dollars  per  annum,  shall  not  be  deemed^ lucrative.'"' 

Embezzlement — Defalcation  of  public  funds . 

Sec.  22.  No  person  who  shall  be  convicted  of  the  embezzlement,  or  defalca- 
tion, of  the  public  funds  of  this  state,  shall  ever  be  eligible  to  any  office  of 
honor,  trust,  or  profit  under  this  state;  and  the  legislature  shall,  as  soon  as 
practicable,  pass  a  law  providing  for  the  punishment  of  such  embezzlement,  or 
defalcation,  as  a  felony. 

Public  moneys  and  accounts. 

Sec.  23.  No  money  shall  be  drawn  from  the  treasuiy  but  in  consequence  of 
appropriations  made  by  law.'**'  An  accurate  statement  of  the  receipts  and 
expenditures  of  the  public  moneys  shall  be  attached  to  and  published  with  the 
laws  at  eveiy  regular  session  of  the  legislature. 

Compensation. 

Sec.  24.  The  members  of  the  legislature  shall  receive  for  their  services  a  com- 
pensation to  be  fixed  by  law,  and  paid  out  of  the  public  treasury;  but  no  increase 
of  the  compensation  shall  take  effect  during  the  term  for  which  the  members  of 
either  house  shall  have  been  elected. 

xxxii.   Title  of  laws — Bevision  and  amendment  of  laics. 

Sec.  25.  Every  law  enacted  by  the  legislature  shall  embrace  but  one  object, 
and  that  shall  be  expressed  in  the  title,'"*  and  no  law  shall  be  revised,  or 
amended,  by  reference  to  this  title;  but  in  such  case,  the  act  revised,  or  section 
amended,  shall  be  re-enacted  and  published  at  length."*' 

Divorces. 

Sec.  2G.  No  divorce  shall  be  granted  by  the  legislature. 

{n)  The  Federal  office  of  siirveyor-genfral  is  a  lucra-  (c)  A  law  is  constitutional  where  the  eulijects  em- 

tive  office,  and  the  office  of  controller  of  state  an  office  braced  in  the  same  statute  and  not  expressed  in  the 

of  profit.    Melony  vs.  Whitman,  lu  Cal.  38.  title  have  congniity  or  proper  connection.    De  Witt  vs. 

To  constitute  a  "  holding"  there  must  be  a  concur-  San  Francisco,  2  Cal.  'IH'-.K 

rence  of  two  wills,  that  of  the  appointing  pov.'cr  and  This  provision  is  merely  directory.   Washington  vs. 

that  of  the  person  appointed.   Id.  Page,  i  Cal.  388;  Pierpont  vs.  Cronch,  10  Cal.  3\o. 

The  W'.rd '■  eligible'   means  capable  of  being  chosen.  A  law  "to  regulate  fees,"  which  provides  for  the 

A  person  holding  a  lucrative  federal  office  cannot  re-  amount  of  fees  and  at  the  same  lime  that  a  part  of  such 

ceive  votis  cast  so  as  to  give  him  a  right  to  take  the  fees  shall  be  paid  into  the  treasury  is  uot  objectionable 

state  office  uijou  or  after  resigning  the  federal  office,  as  embracing  more  than  one  object  and  that  not  ex- 

Searcy  vs.  Grow,  15  Cal.  117.  pressed  in  the  title.    Beam  vs.  Siskijou  County, b6  Cal. 

The  term  "  compensation"  means  the  income  of  the  620. 

office,  not  the  profit  over  and  above  tUe  necessary  ex-  (d)  Tlie  amendment  of  a  statute  operates  as  an  abso- 

penses.    Id.  lute  repeal  of  the  old  statute  or  section  amended,  even 

A  1)1  rson  who  held  and  discharged  the  duties  of  In-  if  the  amendm<  ut  takes  nothing  away  from  the  old  law, 

specter  of  customs  of  the  I'nited  States  under  appoint-  but  merely  adds  a  proviso  in  certain  cases,    billings  vs. 

ment  of  the  collector  at  San  Francisco,  but  whose  ap-  Harvey,  (5  Cal.  381. 

pointment  was  never  approved  by  the  secretary  of  the  Where  a  law  enters  into  and  becomes  a  part  of  a  con- 

treasurj-;  Held  not  to  be  ineligible  to  the  office  of  dis-  tract,  it  caiinot  oe  so  altered  or  amended  as  to  impair 

trict  judge.   People  vs.  Turner,  20  Cal.  1-12.  or  destroy  the  righls  of  the  parties.   Smith  vs.  Curils, 

{h)    The  power  of  controlling  and  dis|iosing  of  the  7  Cal   .584. 

revenue  of  the  state  is  vested  in  the  legislature.     It  is  A  st  itute  may  be  repealed  by  implication ;  and  where 

within  the  power  of  the  judiciary  to  declare  the  action  a  subsequent  a<t  is  repugnant  to  a  prior  one.  the  last 

of  the  legislature  unconstitutional,  where  that  action  operates,  without  a  repealing  clause,  as  a  repeal  of  the 

exceeds  the  limits  of  the  supreme  law;  but  the  courts  first;  and  where  two  acts  passed  at  diflerent  times  are 

have  no  means  and  no  powerto  avoid  the  effects  of  non-  not  in  tjrms  reiDuguaiit.  yet  if  it  is  clearly  evident  that 

action.    Jlyers  vs.  English,  9  Cal.  341.  the  last  was  intended  as  a  revision  or  substitute  of  the 

This  clause  means  only  that  no  money  shall  be  drawn  first,  it  will  repeal  the  first  to  the  extent  in  which  its 

excei^t  in  luirsuance  of  law.    McCauley  vs.  Brooks,  16  provisions   are  re^•i6ed  or  substituted,    Pierpont  vs. 

Cal.  11.  Cronch,  10  Col.  315. 

47 


xxxii-xxxiii  CONSTITrTION  OF  THE  STATE  OF  CALIFOENIA. 

Loiferies. 

Sec.  27.  No  lottery  sliall  be  aiitliorized  by  this  state,  nor  shall  the  sale  of 
lottery  tickets  be  allowed. 

Census. 

Sec.  28.  The  enumeration  of  the  inhabitants  of  this  state  shall  be  taken, 
under  the  direction  of  the  legislature,  in  the  year  one  thousand  eight  hundred 
and  fifty-two  and  one  thousand  eight  hundred  and  fifty-five,  and  at  the  end  of 
every  ten  years  thereafter;  and  these  enumerations,  together  with  the  census 
that  may  be  taken,  under  the  direction  of  the  congress  of  the  United  States  in 
the  year  one  thousand  eight  hundred  and  fifty,  and  everj"  subsequent  ten  years, 
shall  serve  as  the  basis  of  representation  in  both  houses  of  the  legislature. 

Apportionment  of  legislators. 

Sec.  29.  The  number  of  senators  and  members  of  assembly  shall,  at  the  first 
session  of  the  legislature,  holden  after  the  enumeration  herein  provided  for  and 
made,  be  fixed  by  the  legislature,  and  apportioned  among  the  several  counties 
and  districts  to  be  established  by  law%  according  to  the  number  of  white  inhab- 
itants. The  number  of  members  of  assembly  shall  not  be  less  than  twenty- 
four,  nor  more  than  thirty-six,  until  the  number  of  inhabitants  within  this  state 
shall  amount  to  one  hundred  thousand;  and  after  that  period,  at  such  ratio  that 
the  wliole  number  of  members  of  assembly  shall  never  be  less  than  thirty,  nor 
more  than  eighty. 

xxxiii.   Congressional,  senatorial  and  assembly  districts. 

Sec.  30.  When  a  congressional,  senatorial,  or  assembly  district,  shall  be 
composed  of  two  or  more  counties,  it  shall  not  be  separated  by  any  county 
belonging  to  another  district.  No  county  shall  be  divided  in  forming  a  con- 
gressional, senatorial,  or  assembly  district,  so  as  to  attach  one  portion  of  a 
county  to  another  county;  but  the  legislature  may  divide  each  county  into  as 
many  congressional,  senatorial,  or  assembly  districts,  as  such  county  may  by 
apportionment  be  entitled  to.  [Ameiulment,  2:)ro2}osed  18G1;  ratified 'Sd  Septem- 
ber, 1802.^=" 
Cojporations. 

Sec.  31.  CorjDorations  may  be  formed  under  general  laws,  but  shall  not  be 
created  bj'  special  act,  except  for  municipal  purposes.""  All  general  laws  and 
special  acts  passed  pursuant  to  this  section  may  be  altered  from  time  to  time, 
or  repealed. 

Dues. 

Sec.  32.  Dues  from  corporations  shall  be  secured  by  such  individual  liability 
of  the  corporators,  and  other  means,  as  may  be  prescribed  by  law.^"' 

Poicers  and  privileges. 

Sec.  33.  The  term  corporations  as  used  in  this  article  shall  be  construed  to 
include  all  associations  and  joint-stock  companies,  having  any  of  the  powers  or 

{a)  Original  Pt-ction:  Corporations,  txcept  for  niimicipnl  puriiosfs,  niUKt 

Sec.  lil).  \\  ht-n  a  tontjTepsional.Bcnatorial  or  assembly  be  formed  umlcr  general  laws,  and  can  exercise  no 
district  shall  be  composed  of  two  or  more  counties,  it  powei  6  except  such  as  are  coufeired  by  general  laws, 
shall  not  be  separated  by  any  county  belonging  to  San  Francisco  vs.  Spring  Valley  W.  W.,  4K  Cal.  •193. 
another  district;  and  no  county  shall  be  divided  in  A  private  corporation  to  BUpi)ly  a  city  with  water  can- 
forming  a  congressional,  senatorial,  or  assembly  die-  not  be  <  reated  by  special  act,  nor  can  power  to  supply 
trict.  a  city  with  water  be  conferred  on  a  private  corp  ration 

(//)    The  term   "municipal"  is  limited  to  govern-  by  special  act,    San  Francisco  vs.  Siiriug  Val.ey  \V.  \V., 

mental,  and  cannot  be  extended   to  commercial  pur-  48  Cal.  4!»U. 

l>oses.   Low  vs.  Marysville,  i>  Cal.  'iI4.  (c)  As  to  the  power  of  the  legislature  to  regulate  the 

Exdu.'-ive  franchises  and  privileges  may  be  conferred  individual  liability  of   stockholders  in   corporations, 

by  the  legislature  ui)on  persons  or  corporations.    Cali-  see  R  <l)ins(m  vs.  Bidwell,  2'i  Lai.  :i79. 

foniia  Stiite  Telegraph   Comj/aDy  vs.  Alta  Telegraph  The  legislature  of  IHlJl  projjosed  as  an  amendment  to 

Company,  22  Cal.  ;>'J8.  the  constitution  and  as  a  portion  of  section  .'ill  to  this 

An    act  which  purports  on  its  face  to  be  and  is  in  article  the  abrogation  and  annulling  of  sections  32  and 

fact  a  special  act,  cannot  be  converted  into  a  general  'Mi;  but  the  proposition  was  not  adopted  by  the  legisla- 

act  by  a  declaration  of  the  legislature  in  anothi  r  act  turo  of  1802.   See  Statutes  of  1801,  Ul;2,  and  Statutes  of 

that  it  shall  be  considered  a  general  act.  San  Francisco  1802,  582. 
vs.  Spring  Valley  W.  \\ .,  48  Cal.  4U3. 

48 


CONSTITUTION  OF  THE  STATE  OF  CALIFORNIA,  xxxiii-xxxv 

privileges  of  corporations  not  possessed  by  individuals  or  ])artncrsliips.  And 
all  corporations  shall  have  tlie  right  to  sue,  and  shall  be  suljject  to  l)e  sued,  iu 
all  courts,  in  like  cases  as  natural  persons. 

Baiild^  and  bank  circulafion. 

Sec.  34.  The  legislature  shall  have  no  power  to  pass  any  act  granting  any 
charter  for  banking  purposes;  but  associations  may  be  formed,  under  general 
laws,  for  the  deposit  of  gold  and  silver,  but  no  such  association  shall  make, 
ii?sue,  or  put  in  circulation  any  bill,  check,  ticket,  certificate,  promissory  note, 
or  other  paper,  or  the  paper  of  any  bank,  to  circulate  as  money. 

xxxiv.  Banking  privileges. 

Sec.  35.  The  legislatu,re  of  this  state  shall  prohibit,  by  law,  any  person  or 
persons,  association,  company,  or  corporation,  fi'om  exercising  the  privileges  of 
banking,  or  creating  paper  to  circulate  as  money. 

Individual  liability  of  coryorators. 

Sec.  3G.  Each  stockholder  of  a  corporation,  or  joint-stock  association,  shall 
be  individually  and  personally  liable  for  his  proportion  of  all  its  debts  and 
liabilities.*"^ 

Organization  of  cities  and  villages. 

Sec.  37.  It  shall  be  the  duty  of  the  legislature  to  provide  for  the  organization 
of  cities  and  incorporated  villages,  and  to  restrict  their  power  of  taxation, 
assessment,  borrowing  money,  contracting  debts,  and  loaning  their  credit,  so 
as  to  prevent  abuses  in  assessments  and  in  contracting  debts  by  such  municipal 
corporations."'^ 

Legislative  elections. 

Sec.  38.  In  all  elections  by  the  legislature,  the  members  thereof  shall  vote 
viva  voce,  and  the  votes  shall  be  entered  on  the  journal. 

Effect  of  amendments. 

Sec.  39.  In  order  that  no  inconvenience  may  result  to  the  public  service  from 
the  taking  effect  of  the  amendments  proposed  to  Article  Four  hj  the  legislature 
of  eighteen  hundred  and  sixty-one,  no  officer  shall  be  suspended  or  superseded 
thereby  until  the  election  and  qualification  of  the  several  officers  provided  for 
in  said  amendments.     [Amendment,  proposed  18G1;   ratified  Zd  September,  1862. 

AETICLE  V. 

EXECUTIVE    DEPARTMENT. 

XXXV.   Governor. 

Section  1.  The  supreme  executive  power  of  this  State  shall  be  vested  in  a 
chief  magistrate,  who  shall  be  styled  the  governor  of  the  State  of  California. 

Election  and  term. 

Sec  2.  The  governor  shall  be  elected  by  the  qualified  electors  at  the  time 
and  places  of  voting  for  members  of  the  assembly,  and  shall  hold  his  office  four 
years  from  and  after  the  first  Monday  in  December  subsequent  to  his  election, 

(a)    Legislation  is  necessary  to  give  practical  effect  The  fact  that  the  legislature  has  once  excrcisoil  its 

to  this  provision,  and  without  the  aid  of  legislation  it  powers  iu  liuiitiug  the  extent  of  taxation  iu  luuuicipal 

is  inoperative.   Trench  vs.  Teschemaker,  24  Cal.  518.  corporations  does  imt  i  revent  llic  l(;,'islaturefroni  again 

[h)  The  proposed  Central  Pacific  Raih-oad,  leading  exercisingitspower  by  enlarging  the  authority  to  tax.  Id. 
from  Sacramento,  the  easlern  portion  of  the  state,  is  so  The  legislature  may  authori/r  a  municipal  corpora- 
far  a  public  improvement  and  sufficiently  for  the  appa-  tion  to  pay  claims  invalid  iu  law,  but  equitable  and 
rent  iiiterest  of  Sacramento  that  a  law  authorizing  the  just  in  tliemselves.    Id. 

municipality  to  become  a  stockholder  i*  i.ot  unconsti-  The  words  "taxation"   and   •' assessment  "  do  not 

tutional.  as  imposing  a  tax  upon  a  local  community  for  have  the  same  signification.    The  h  gislature  can  have 

an  improvement  in  which  it  has  no  peculiar  inti-rest.  nothing  to  do  with  the  mode  of  enforcing  the  taxing 

Robinson  vs.  Hidwell,  22  Cal.  379.  power,  represented  by  the  word  "  assessment,"  except 

The  powers  of  a  municipal  corj^oration  may  be  in-  while  working  under  this  provision  of  the  coustitutiou. 

creased,  restricted    or  rejiealed  by  the  legislature  at  Taylor  vs.  Palmer,  131  Cal.  240. 
Will,  saving  only  vested  rights.  Blauding  vs.  Burr,  13 
Cal.  343. 

4  49 


xxxv-xxxvii  CONSTITUTION  OF  THE  STATE  OF  CALIFOKNIA. 

and  until  his  successor  is  elected  and  qualified.     [Amendment,  proposed  1861; 
ratified  M  September,  1862/"^ 

Qucdi/ications. 

Sec.  3.  No  person  shall  be  eligible  to  the  office  of  g-overnor  (except  at  the 
first  election)  who  has  not  been  a  citizen  of  the  United  States,  and  a  resident  of 
this  State,  two  years  next  preceding  the  election,  and  attained  the  age  of  twenty- 
five  years  at  the  time  of  said  election. 

Returns  of  election. 

Sec.  4.  The  returns  of  every  election  for  governor  shall  be  sealed  up  and 
transmitted  to  the  seat  of  government,  directed  to  the  speaker  of  the  assembly, 
who  shall,  during  the  first  week  of  the  session,  open  and  publish  them  in  pres- 
ence of  both  houses  of  the  legislature.  The  person  having  the  highest  number 
of  votes  shall  be  governor;  but  in  case  any  two  or  more  have  an  equal  and  the 
highest  number  of  votes,  the  legislature  shall,  by  joint  vote  of  both  houses, 
choose  one  of  said  persons,  so  having  an  equal  and  the  highest  number  of  votes, 
for  governor. 
xxxvi.   Commander-in-chief  ^ 

Sec.  5.  The  governor  shall  be  commander-in-chief  of  the  militia,  the  army 
and  na^y  of  this  State . 

Executive  business. 

Sec.  6.  He  shall  transact  all  executive  business  with  the  officers  of  govern- 
ment, civil  and  military,  and  may  require  information  in  writing  from  tlie 
ofiicers  of  the  executive  department,  upon  any  subject  relating  to  the  duties  of 
their  respective  offices. 

Execution  of  laws. 

Sec  7.  He  shall  see  that  the  laws  are  faithfully  executed. 

Filling  vacancies. 

Sec  8.  "When  any  office  shall,  from  any  cause,  become  vacant,  and  no  mode 
is  provided  by  the  constitution  and  laws  for  filling  such  vacancy,  the  governor 
shall  have  power  to  fill  such  vacancy  by  granting  a  commission,  which  shall 
expire  at  the  end  of  the  next  session  of  the  legislature,  or  at  the  next  election 
by  the  people. ^"^ 
S2:>ecial  sessions  oflerjislature. 

Sec  9.  He  may,  on  extraordinaiy  occasions,  convene  the  legislature  hy  proc- 
lamation, and  shall  state  to  both  houses,  when  assembled,  the  purpose  for 
which  they  shall  have  been  convened. 

xxxvii.  Executive  messages. 

Sec  10.  He  shall  communicate  by  message,  to  the  legislature,  at  every 
session,  the  condition  of  the  state,  and  recommend  such  matters  as  he  shall 
deem  expedient. 

(a)  Original  Bection:  As  to  what  constitiites  a  vacancy,  conBult  Ryder  vs. 

Sec.  2.  The  Koveruorghall  be  elected  by  the  quaHfied  Mlzuer.  7  Cal.  .")1'.»,  and  Aylett  vs.  Langdon.  8  Oal.  1. 

tIectorB,  at  the  linie  aud  i. luces  of  voting  for  members  A  person  appointed  by  the  governor  to  fill  a  vacancy 

of  assembly,  and  shall  hold  his  office  two  years  from  in  the  office  of  superintendent  of  immigration  for  Sau 

the  time  of  his  iustallation   and  until  his  successor  Francisco  1=  entitled  to  hold  until  a  new  appointment 

shall  be  qualified.  by  the  governor  and  senate     The  governor  cannot,  after 

(h)  This  jjower  in  the   governor  is  limited  by  the  the  coimuission  is  issued,  revoke  it;  and  the  appointee 

period  when  the  people  or  the  legislature  can  elect  or  CHniiot  be  disiurbcd  until  the  office  is  filled  pursuant 

appoint;    on  the  arrival  of  which  his  power  ceases,  to  statute.   Wetherbee  vs.  Cazneau,  20  Cal.  •'iOS. 

Casserly  vs.  !•  itch,  1  Cal.  51'.».  This  section  applies  only  to  those  cases  of  vacancies 

A  constitutional  officer  cannot  be  divested  of  his  of-  for  filling  which  no  other  mode  is  provided  "  by  the 

flee  otherwise  than  as  prescribed  by  the  constitution,  constitution  and  laws,"  and  has  no  ai)idicatioii  to  va- 

Doubt  expre-sed  as  to  whether  the  absence  of  a  judge  cancies  the  mode  of  filling  wlii' h  is  provided  by  the 

trom  the  state  is  such  a  vacancy  as  can  be  supplied  by  law  of  April  28,  1H.">1,  concerning  ofiicers.   Id. 

the  executive.    People  vs.  Wells,  2  Cal.  198.  When  th«re   is  a  person  in   possession  of  nn  office, 

Where  there  is  a  failure  to  fill  an  elective  office  on  the  who  is  expressly  Huthori/.ed  by  statutes  or  constitution 

expirat.on  of  a  term,  though  the  incumbent  holds  un-  to  discharge  its  duties  temporarily,  till  the  electing  or 

til  his  successor  is  appointed  aud  qualifies,  the  office  appointing  power  can  regularly  act,  tht^re  is  no  vacancy 

becomes  de  jure  vacant,  aud  can  be  filled  by  the  gov-  within  th"  meaning  of  the  constitutional  clause.  Peo- 

emor.   T.angdon  vs.  lieid,  :>  Cal.  2«b.  pie  vs.  Tilton   .u  Cul.  lUl. 

50 


CONSTITUTION  OF  THE  STATE  OF  CALIFORNIA,  xxxvii-xxxviii 

Adjournment  of  legislature. 

Sec.  11.  In  case  of  a  disagreement  between  the  two  houses,  with  respect  to 
the  time  of  adjournment,  the  governor  shall  have  power  to  adjourn  the  legis- 
lature to  such  time  as  he  may  think  proper;  provided  it  be  not  bejond  tlie  time 
fixed  for  the  meeting  of  the  next  legislature. 

Dis^ahilities. 

Sec.  12.  No  person  shall,  while  holding  any  office  under  the  United  States, 
or  tins  state,  exercise  the  office  of  governor,  except  as  hereinafter  expressly 
provided. 

Reprieves  and  pardons. 

Sec.  13.  The  governor  shall  have  the  power  to  grant  reprieves  and  pardons 
after  conviction,  for  all  offenses  except  treason  and  cases  of  impeachment,  ujjon 
such  conditions,  and  Avith  such  restrictions  and  limitations,  as  he  may  think 
proper,  subject  to  such  regulations  as  may  be  provided  by  law  relative  to  the 
manner  of  applying  for  pardons.  Upon  conviction  for  treason,  he  shall  have 
the  power  to  suspend  the  execution  of  the  sentence  until  the  case  shall  be  re- 
ported to  the  legislature  at  its  next  meeting,  when  the  legislature  shall  either 
pardon,  direct  the  execution  of  the  sentence,  or  grant  a  further  reprieve.  He 
shall  communicate  to  the  legislature,  at  the  beginning  of  every  session,  every 
case  of  reprieve  or  pardon  granted,  stating  the  name  of  the  convict,  the  crime 
of  which  he  was  convicted,  the  sentence  and  its  date,  and  the  date  of  the  pardon 
or  reprieve. 

Seal  of  state. 

Sec.  14.  There  shall  be  a  seal  of  this  state,  which  shall  be  kept  by  the  gov- 
ernor, and  used  by  him  officially,  and  shall  be  called  "  The  Great  Seal  of  the 
State  of  California," 

xxxviii.  Grants  and  commissions. 

Sec.  15.  All  grants  and  commissions  shall  be  in  the  name  and  by  the  authority 
of  the  people  of  the  State  of  California,  sealed  with  the  great  seal  of  the  state, 
signed  by  the  governor,  and  countersigned  by  the  secretary  of  state. 

Lieutenant-governor. 

Sec.  16.  A  lieutenant-governor  shall  be  elected  at  the  same  time  and  places, 
and  in  the  same  manner  as  the  governor;  and  his  term  of  office,  and  his  qualifi- 
cations of  eligibility,  shall  also  be  the  same.  He  shall  be  president  of  the  senate, 
but  shall  only  have  a  casting  vote  therein.  If,  during  a  vacancy  of  the  office  of 
governor,  the  lieutenant-governor  shall  be  impeached,  displaced,  resign,  die,  or 
become  incapable  of  performing  the  duties  of  his  office,  or  be  absent  from  the 
state,  the  president  of  the  senate  shall  act  as  governor  until  the  vacancy  be 
filled  or  the  disability  shall  cease. 

WJien  duties  of  governor  to  devolve  on  lieutenant-governor. 

Sec.  17.  In  case  of  the  impeachment  of  the  governor,  or  his  removal  from 
office,  death,  inability  to  discharge  the  powers  and  duties  of  the  said  office, 
resignation,  or  absence  from  the  state,  the  powers  and  duties  of  the  office  shall 
devolve  upon  the  lieutenant-governor  for  the  residue  of  the  term,  or  until  the 
disability  shall  cease.'"*  But  when  the  governor  shall,  with  the  consent  of  the 
legislature,  be  out  of  the  state  in  time  of  war,  at  the  head  of  any  military  force 
thereof,  he  shall  continue  commander-in-chief  of  the  military  force  of  the  state. 

(a)  When  the  constitution   clearly  enumerates   the     governor)   all  other  causes  of  vacuncy  are  excluded, 
events  that  shall  constitute  a  vacancy  in  a  particular     Melouy  vs.  Whitman,  10  Cal.  iiS. 
office  (as  it  is  held  to  do  here  in  regard  to  the  office  of 

51 


xxxviii-xl  CONSTITUTION  OF  THE  STATE  OF  CALIFORNIA. 

Other  state  officers. 

Sec.  18.  A  secretaiy  of  state,  a  controller,  a  treasurer,  an  attorney-general, 
and  a  surveyor-general,  shall  be  elected  at  the  same  time  and  places,  and  in  the 
same  manner  as  the  governor  and  lieutenant-governor,  and  whose  term  of  office 
shall  be  the  same  as  the  governor/*^  [Amendment,  proposed  1861;  ratljied  3t? 
September,  1862..^^' 

Duties  of  secretary  of  state. 

Sec.  19.  The  secretary  of  state  shall  teep  a  fair  record  of  the  official  acts  of 
the  legislative  and  executive  departments  of  the  government,  and  shall,  when 
required,  lay  the  same,  and  all  matters  relative  thereto,  before  either  branch  of 
the  legislature,  and  shall  perform  such  other  duties  as  may  be  assigned  him  by 
law;  and  in  order  that  no  inconvenience  may  result  to  the  public  sei'vice,  from 
the  taking  effect  of  the  amendments  proposed  to  said  Article  Five  by  the  legisla- 
ture of  eighteen  hundred  and  sixty-one,  no  officer  shall  be  superseded  or  sus- 
pended thereby,  until  the  election  and  qualification  of  the  several  officers 
provided  for  in  said  amendments.  [Amendment,  proposed  1861;  ratified  3fZ 
September,  1862.'<=^ 

xxxix.  Election  of  state  officers. 

Sec  20.  The  controller,  treasurer,  attorney-general,  and  surveyor-general, 
shall  be  chosen  by  joint  vote  of  the  two  houses  of  the  legislature,  at  their  first 
session  under  this  constitution,  and  thereafter  shall  be  elected  at  the  same  time 
and  places,  and  in  the  same  manner  as  the  governor  and  lieutenant-governor. 

Compensation. 

Sec  21.  The  governor,  lieutenant-governor,  secretary  of  state,  controller, 
ti-easurer,  attorney-general,  and  surveyor-general,  shall  each,  at  stated  times 
during  their  continuance  in  office,  receive  for  their  services  a  compensation, 
which  shall  not  be  increased  or  diminished  during  the  terai  for  which  they  shall 
have  been  elected;  but  neither  of  these  officers  shall  receive  for  his  own  use 
any  fees  for  the  performance  of  his  official  duties. ^''^ 


ARTICLE  VI. 

JUDICIAL  DEPARTMENT. 

xl.  Judicial  poioer. 

Section  1.  The  judicial  power  of  this  state  shall  be  vested  in  a  supreme  court, 
in  district  courts,  in  county  courts,  in  probate  courts,  and  in  justices  of  the 
peace,  and  in  such  recorders  and  other  inferior  courts  as  the  legislature  may 

(a)  The  coneUtutloDal  policy  Is  that  all  elective  of-  (r)  Original  Bectlon: 

flcere  connected  with  the  extcutive  ciepurtiuentB  tliall  Skc.  1!».  The  secretary  of  Blate  f-hall  be  appointed  by 

be  elected  bif-n»lally  at  the  same  time  and  place  and  the  governor,  by  and  wiih  the  advice  and  consent  of 

in  the  same  manner.     An  apiiJufnient  if  a  controllir  the  senate.     He  shall  keej)  a  fair  record  of  the  otVu  ial 

by  the  governor  before  this  election  cimni't  defeat  this  acts  of  the  letjisliitive   and  execulive  departments  of 

policy,  nor  deprive  the  pe  pie  of  their  right  to  fill  the  tlie  govemmiiit,  and    shall,  when    required,  lay  the 

oflBce  of  controller  at  such  election,   trooks  vs.  Melony,  saiiie,  and  all  matters  ulative  thereto,  before  either 

1.)  Cal.  .08.  branch  of  tlie  IcgiKlature;  and  shall  perform  euch other 

('()   Original  Bection:  duties  as  shall  be  nssi^;ned  him  by  law. 

btc.  IH.  A  secretary  of  state,  a  controller,  a  treasurer,  {(I)  Tlie  constitution  is  silent  with  res-pect  to  the  du- 

an  attoniey-general,  and    surveyor-general,  shall    be  ties  to  be  leriurmed  bj  the  attorney  general,  secretary 

chosen  in  the  manner  provided  in  this  constitutiou;  of  state,  controlli  rand  treasurer,  and  in  assigning  their 

and  the  term  of  otHce,  and  eligibility  of  each,  ^hall  be  duties  the  legislature  has  a  -wide  discretion;  but  a  lim- 

'he  same  aB  are  prescribed  by  the  governor  and  lieu-  itation  on  this  discretion  is  Implied  from  the  nature  of 

tenant-governor.  these  o&^ces.  Love  vs.  Baehr,  47  Cal.  364. 


52 


CONSTITUTION  OF  THE  STATE  OF  CALIFOKNIA.  xl 

establish  in  any  incorporated  cit}'  or  town.'"^'    \AmcH(lme^-U,  proposed  1861 ;  ratified 
'M  September,  18(12}"'' 

Supreme  court. 

Sec.  2.  The  supreme  court  shall  consist  of  a  chief  justice  and  four  associate 
justices.  The  presence  of  three  justices  shall  be  necessary  for  the  transaction 
of  business,  excepting-  such  business  as  may  be  done  at  chambers,  and  the  con- 
currence of  three  justices  shall  be  necessary  to  pronounce  a  judgment.  [Amend- 
ment, proposed  18G1;  ratified  Zd  September,  1862.^"^ 
Election  of  supreme  judges. 

Sec.  3.  The  justices  of  the  supreme  court  shall  be  elected  by  the  qualified 
electors  of  the  state  at  special  elections  to  be  j)rovided  by  law,  at  which 
elections  no  oJBficer  other  than  judicial  shall  be  elected,  except  a  superintendent 
of  public  instruction.  The  first  election  for  justices  of  the  supreme  court  shall 
be  held  in  the  year  eighteen  hundred  and  sixty-three.  The  justices  shall  hold 
their  offices  for  the  term  of  ten  years  from  the  first  day  of  January  next  after 
their  election,  except  those  elected  at  the  first  election,  who,  at  their  first  meet- 
ing, shall  so  classify  themselves  by  lot,  that  one  justice  shall  go  out  of  office 
every  two  years.  The  justice  having  the  shortest  term  to  serve  shall  be  the 
chief  justice.     [Amendment^  proposed  1861;  ratified  Zd  September ,  1862."^' 

Jurisdiction  of  supreme  court. 

Sec,  4.  The  supreme  court  shall  have  appellate  jurisdiction  in  all  cases  in 
equit}^;  also,  in  all  cases  at  law  which  involve  the  title  or  possession  of  real 
estate,  or  the  legality  of  any  tax,  impost,  assessment,  toll,  or  mumcii^al  fine, 
or  in  which  the  demand,  exclusive  of  interest,  or  the  value  of  the  property  in 
controversy,  amounts  to  three  hundred  dollars;  also,  in  all  cases  arising  in  the 
j)robate  courts;  and  also,  in  all  criminal  cases  amounting  to  felony,  on  ques- 
tions of  law  alone.  The  court  shall  also  have  power  to  issue  writs  of  manda- 
mus, certiorari,  prohibition,  and  habeas  corpus,  and  also,  all  writs  necessary  or 
jiroper  to  the  complete  exercise  of  its  ap2:»ellate  jurisdiction.  Each  of  the  jus- 
tices shall  have  jiower  to  issue  writs  of  habeas  corpus  to  any  part  of  the  state, 
upon  petition  on  behalf  of  any  person  held  in  actual  custody,  and  may  make 
such  writs  returnable  before  himself,  or  the  supreme  court,  or  before  any  dis- 
trict court,  or  any  county  court,  in  the  state,  or  befoi'e  any  judge  of  said  coui'ts. 
[Ameiidmetd,  proposed  1861;  ratified  Zd  September,  1862.'"' 

(a)  Each  branch  of  iiie  judicial  department  has  its  The  eonstitnti"u  not  having  defined  the  jurisdiction 

functi  Bs  jiBsigni'd  by  the  constitution,  and  is  beyond  of  the  municiiJal  courts  authorized  to  be  established, 

-"the  control  of  either  of  the  other  departments  of  the  it  is  left  to  be  regulated  bj- the  legislature  under  its 

government.  Parsons  vs.  luolunine  County  Water  Com-  general  powers.   Id. 

pany,  5  Cal.  43.  The  municiiial  criminal  cou't  of  San  Francisco  is  a 

The  legislature  cannot  confer  on  one  court  the  funo-  constitutional  court.   People  vs.  Myland,  41  Cal.  12'J. 

tions  and  powers  which  the  constitution  has  conferred  (b)  Original  section: 

on  another;  consequently  a  law  vesting  justices  of  the  Section  1.  The  judicial  power  of  this  state  shall  be 

peace  with  juris  iiction  where  the  aiuouut  in  contro-  vested  in  a  supreme  court,  in  district  courts,  in  county 

versy  amounts  to  that  over  which  district  cuurts  have  courts,  and  in  justices  of  the  p.  ace.     The  lejiislature 

j  irisdiction  is  unconstitutional.     Zander  vs.  Coe,   5  may  also  establish  such  municipal  and  other  inferior 

Cal.  2:i0.  courts  as  miy  be  deemed  necessary. 

Under  the  piwer  "  fo  establi-h  such  municipal  and  (t)   Original  section: 

other  inferior  coui-ts  as  may  be  necessary,"  the  courts  Sec   2.  The  supreme  court  shall  consist  of  a  chief 

thus  creat-d  could  only  be  of  inferior,  limited  and  spe-  justice  and  two  associate  justices,  any  two  of  whom 

cial  jurisdiction.     Ttie  old  suiierior  c  u  t  of  San  Iran-  shall  constitute  a  quorum. 

<;isco  could,  therefore,  not  be  vested  with  jurisdiction  (d)  Origin:!  section; 

so  as  to  let  its  powers  run  beyond  its  territory.  Meyer  Skc.  'A.  The  justices  of  the  supreme  court  shall  be 

vs.  Halkman,  ti  Cal.  .582.  elected  at  the  general  election,  by  the  qualitiod  electors 

The  purpose  and  effect  of  the  amendment  of  .Article  of  the  state,  and  shall  hold  their  ofhte  for  the  term  of 

VI  is  not  to  susi^eud  the  administration  of  any  portion  six  years  from  the  first  day  of  January  next  after  their 

■of  the  laws  of  the  state,  but  to  ijrovide  a  judiciary  sys-  election:  jirovided  that  ihc  :egi!^lature  shall,  at  its  first 

tem  which  will  go  inio  oiieration  when  the  necessary  meeting,  elect  a  chief  justice  and  two  associate  justiies 

officers  shall  be  elected  pursuant  to  laws  to  be  hereaf-  of  the  suireme  court,  by  joint  voti;  of  both  houses,  and 

ter  enacted,  and  to  contiuu"  the  forua«r  judiciary  sys-  so  classify  them  that  one  shall  go  out  of  office  eveiy 

tem  in  force  until  the  new  one  shall  be  in  a  condition  two  j-ears.    After  ihe  first  el  ction.  the  senior  justice 

to  exercise  its  functions.    The  old  provisions  cease  to  in  commission  shall  be  the  chief  justice. 

have  effect  from  time  to  time  as  the  substituted  prov  s-  (c)   Original  section: 

ions  commence  to  operate.   Ex  parte  Carlos  Oliverez,  Sec.  4.  The  supreme  court  shall  hjvve  appellate  juris- 

21  Cal.  415.  diction  in  all  cases  when  the  matter  in  dispute  exceeds 

The  term  "municipal  cojirts  "  has  a  legal  meaning  two  himdred  dollars,  when  the  legality  of  any  tax.  toll, 

and  includes  mayors'  and  recorders'  courts.   Urid'^is  or  impost,  or  municipal  fine  is  in  qtiestion,  and  in  all 

vs.  Morrill,  22  Cal.  473.  criminal  cases  amounting  to  felony  or  questions  of  law 

53 


xli 


CONSTITUTION  OF  THE  STATE  OF  CALIFORNIA. 


xli.  Judicial  dislrivts — Di^lricf  jiidr/rs. 

Sec.  5.  The  state  shall  he  divided  hj  the  legislature  of  eighteen  hundred  and 
sixty-three,  into  fourteen  judicial  districts,  subject  to  such  alteration  from 
time  to  time,  b}'  a  two  thirds  vote  of  all  the  members  elected  to  both  houses,  as 
the  j)ublie  good  may  require;  in  each  of  which  there  shall  be  a  district  court, 
and  for  each  of  which  a  district  judge  shall  be  elected  by  the  qualified  electors 
of  the  district,  at  the  special  judicial  elections  to  be  held  as  provided  for  the 
election  of  justices  of  the  supreme  court  by  section  three  of  this  article.  The 
district  judges  shall  hold  their  offices  for  the  term  of  six  years  from  the  first 
day  of  January  next  after  their  election.  The  legislature  shall  have  no  power 
to  grant  leave  of  absence  to  a  judicial  officer,  and  an}-  such  officer  who  shall 
absent  himself  from  the  state  for  upwards  of  thirty  consecutive  days  shall  be 
deemed  to  have  forfeited  his  office.  [Amendment,  proposed  18G1;  ratified  SJ  Sep- 
temher,  18G2.^'') 


alone.  And  the  said  conrt.  and  each  of  the  justices 
thereof,  as  well  as  all  district  and  county  judges,  iehall 
have  power  to  issue  writs  of  habeas  coriius  -at  i\i<^  m- 
i-tauce  of  any  person  held  in  iictual  custody.  They 
i-hall  also  have  j)ower  to  issue  all  other  writs  and  i^ro- 
CC-P6  necessary  to  the  exercise  of  their  appellate  juris- 
diction, and  shall  be  conservators  of  tlie  peace  tii rough- 
out  the  state. 

The  supreme  court  being  created  hy  the  constitution, 
and  its  powers  bring  therein  defined,  the  jurisdiction 
therein  conferred  must  be  taken  as  exclusive;  hence, 
under  the  original  section  it  was  held  that  it  had  no 
original  jurisdiction,  except  in  cases  of  habeas  corpus, 
and  could  not  issue  a  quo  warranto.  Attorney-General 
ex  i^arte,  1  Cal.  85. 

>or  could  it  issue  a  certiorari.  Warner  vs.  Hall,  1 
Cal.  90. 

But  it  could  exercise  its  appellate  powers  by  means 
of  niandiimus,  and  it  seems,  of  certiorari,  &c.  Feople 
vs.  Turner,  1  Cal.  1«;  White  vs.  Lighthall,  1  Cal.  ■Ail; 
see  Cowell  vs.  Kuctelew,  U  Cal.  6-10. 

No  appeal  lay  from  the  judgment  of  a  district  court 
on  an  appeal  from  an  order  of  the  court  of  hessions 
upon  an  application  for  a  ferry  license.   2  Cal.  VA'A. 

Held  that  the  supreme  court  had  power  to  issue  a 
vrit  of  error  to  a  county  couit,  where  tbe  supreme 
couit  had  jurisdiction  of  the  subje<  t-m;  tter.  and  thi  re 
Was  no  express  provision  by  law  by  which  the  case 
cuuld  be  brought  up.    Adams  &  Co.  vs.  Town,  3  Cal. 

']  his  court  has  no  appellate  jurisdiciion  in  cases  of 
misdemeanor  or  crimes  of  a  less  degree  th  n  felony, 
and  no  jurisdiction  can  be  conferred  by  the  legislature. 
I'eop  e  vs  .\pplegate,  ■')  Cal.  295;  People  vs.  bhear,  7 
Ch:.  1:.9;  People  \s   Vick,  7  Cal.  ir,5. 

The  KuiJreuie  court  has  no  power  to  naturalize.  Ex 
parte  Frank  Knowles,  5  Cal.  3i0. 

A  writ  of  error  will  lie  only  in  cases  where  no  appeal 
is  given  by  statute.  Where  an  appeal  is  given,  that 
remedy  is  exclusive.   Haight  vs.  Gay.  8  Cal.  'iO". 

Tlie  supr.-me  couit  jjossesses  i  piiellate  jurisdiction 
in  all  cases,  except  as  provided  in  the  constitution;  it 
conse(|i:(  ntiy  has  iippellate  jurisdiction  in  divor».e 
«^apes.   Connnt  vs.  (.'onant,  10  Cal.  2-19. 

Jurisdiction  on  appeal  will  not  be  entertained  where 
the  record  (in  a  suit  for  damages)  fails  to  show  that 
the  matter  in  dispute  exceeds  S2u0.  Doyle  vs.  Seawall, 
12  Ciil.  280. 

'I  he  words  "matter  in  dispute"  menn  tbe  subject 
of  litigation.  Cost«  form  no  )  art  of  it.  Dumphy  vs. 
Guindon,  1:<  Cal.  28;  Votau  vs.  Reese.  20  Cal.  K!). 

\Vhee  suit  was  brought  for  f2(10  and  defendant 
phaded  a  set-off  of  $125:  Held,  that  the  matter  in  dis- 
pute  did  not  exceed  $200.  Simmons  vs.  Brainard,  14 
Cal.  278. 

Where  there  was  a  judgment  for  plaintilf  agiiiiist  de- 
fendant for  $000,  and  di^fendant.  having  a  judgment 
against  plaintiff"  for  $110  in  another  court,  moved  to 
set  it  off.  which  was  denied:  Held  on  axji>eal  of  the 
motion  that  the  matter  in  dispute  did  not  exceed  $200. 
Craiidell  vs.  Elen,  15  Cal.  40(>. 

Some  offenses  may  be  punished  either  as  felonies  or 
inisdememors,  and  in  such  cases  the  itunishiiieiit  in- 
flicted must  determine  the  grade  of  the  offense.  If  the 
l)unishment  is  a  fine  for  a  misdemeanor,  though  it  ex- 
ceeds .$200,  the  supreme  court  has  no  ajjpellate  juris- 
diction.   People  vs.  Cornell,  10  f;al.  1S7. 

The  half  pilotage  allowed  by  the  twenty-third  section 
of  the  act  of  March  29,  1856,  relating  to  pilots,  is  not 


a  "  toll"  within  the  meaning  of  the  constitution.  Har- 
rison vs.  Green,  18  Cal.  94. 

Where  the  matter  in  dispute  does  not  exceed  the  con- 
stitutional sum,  the  supreme  court  has  no  appellate 
jurisdiction,  though  the  demand  is  secured  by  a  me- 
chanic's lien  or  a  mortgage,  of  which  a  foreclosure  is 
sought  in  the  same  case,  roland  vs.  Cairigan,  20  Cal. 
174. 

The  supreme  court  could  not,  under  the  original 
article,  issue  the  writ  of  certiorari  except  in  aid  of  its 
appellate  jurisdiction;  consequently  the  provision  of 
section  456  of  the  practice  act  held  not  to  apply  to  it. 
Miliken  vs.  Huber,  21  Cal.  169. 

Where  in  an  acticm  of  forcible  entry  and  detainer, 
plaintiif  had  judgment  in  a  justice's  court  for  $■.  0  dam- 
ages and  $20  line  and  costs,  from  which  defendant 
appealed  to  the  county  couit,  where  the  action  was  dis- 
missed and  afti  rwards  a  new  trial  granted:  Held  that 
it  was  doubtful  whether  the  supreme  conrt  had  juris- 
diction of  an  appeal  from  the  order.  Quinn  vs.  Kenyon, 
22  Cal.  82. 

Under  the  constitution  as  amended,  the  supreme 
court  has  original  jurisdiction  to  issue  writs  of  man- 
damus, certiorari,  prohibition  and  habeas  corpus. 
Tyler  vs.  Houghton,  25  Cal.  20. 

A  fine  imposed  by  the  county  court  for  wrongfully 
demanding  and  collecting  toll  for  the  privilege  of  pass- 
ing over  a  road,  is  not  a  "municipal  fine"  within  tbe 
meaning  of  the  constitxition.  People  vs.  Johnson,  30 
Cal.  98. 

The  words  "cases  at  law"  refer  to  civil  as  distin- 
guished from  criminal  cases.  People  vs.  Johnson,  30 
Cal.  9s. 

The  supreme  court  has  constitutional  jurisdiction  of 
an  appeal  from  the  county  court  in  a  contested  election 
case.  Knowles  vs.  Yeates,  31  Cal.  82;  Day  vs.  Jones, 
31  Cal.  201. 

[a]   Original  section: 

Sec.  5.  Tbe  state  shall  be  divided  by  the  first  legis- 
lature into  a  convenient  number  of  districts,  subject  to 
such  alteration  from  time  to  time  as  tbe  i)ublic  good 
may  require,  for  each  of  -which  a  district  jtidge  shall  be 
appointed  by  the  joint  vote  of  the  legislature  at  its 
first  meeting,  who  shall  hold  his  office  for  two  years 
from  the  first  rliiy  of  Jannarj-  next  after  his  election ; 
after  which  said  judges  shall  be  elected  by  the  qualified 
electors  of  their  re>pective  districts,  at  the  geieral 
election,  and  shall  hold  their  office  for  the  term  of  six 
years. 

An  act  of  the  legislature,  by  which  a  district  judge 
of  one  district  is  empowered  to  hold  a  district  court  in 
another  district,  is  not  unconstitutional.  People  vs. 
McCauley,  1  Cal.  379. 

An  election  for  district  judge  at  the  general  election 
of  1858,  when  the  thi  n  incumbent's  otti'  e  was  not  to 
expire  until  1801:  Held  unauthorized.  Brodie  vs.  Wel- 
ler,  11  Cal.  77. 

When  a  district  judge  is  elected  by  the  people  on  the 
occasion  of  a  vacancy,  he  is  elected  for  a  full  term,  and 
this,  though  the  proclamation  of  the  governor  is  for  the 
unex|iired  term.  '1  he  legislature  can  direct  the  time 
and  prescribe  the  manner  of  electing  di-trict  judges, 
but  cannot  change  tbe  tenure  of  tbe  office.  Peoijle  vs. 
liurbank.  12  Cal.  378. 

This  iirovision  does  not  restrict  the  number  of  ju- 
dicial districts  to  fourteen;  it  means  that  the  legisla- 
ture may  alter  their  numbir  as  well  as  their  extent. 
People  vs.  Sassovich,  29  Cal.  480. 


54 


CONSTITUTION  OF  THE  STATE  OF  CALIFORNIA.  .   xli 

Jurisdiction  of  diHirid  courts. 

Sec.  G.  The  district  courts  shall  have  original  jurisdiction  in  all  cases  in 
equity;  also,  in  all  cases  at  law  which  involve  the  title  or  possession  of  real 
i:)roperty,  or  the  legality  of  any  tax,  impost,  assessment,  toll,  or  municipal  fine, 
and  in  all  other  cases  in  which  the  demand,  exclusive  of  interest,  or  the  value 
of  the  property  in  controversy,  amounts  to  three  Iiundred  dollars;  and  also  in 
all  criminal  cases  not  otherwise  provided  for.  The  district  courts  and  their 
judges  shall  have  power  to  issue  writs  of  habeas  corpus  on  petition  by  or  on 
behalf  of  any  person  held  in  actual  custody  in  their  respective  districts. 
[Amendment,  proposed  18G1;  ratified  M  September,  1802.^"' 
County  courts  and  county  judges — Probate  judge  in  San  Francisco. 

Sec.  7.  There  shall  be  in  each  of  the  organized  counties  of  the  state  a  county 
court,  for  each  of  which  a  county  judge  shall  be  elected  by  the  qualified  electors 
of  the  county,  at  the  special  judicial  elections  to  be  held,  as  provided  for  the 
election  of  justices  of  the  supreme  court  by  section  three  of  this  article.  The 
county  judges  shall  hold  their  offices  for  the  term  of  four  years  from  the  first 
day  of  January  next  after  theii*  election.  Said  courts  shall  also  have  power  to 
issue  naturalization  2^apers."'^  In  the  city  and  county  of  San  Francisco  the 
legislature  may  sej^arate  the  office  of  probate  judge  from  that  of  county  judge, 
and  may  provide  for  the  election  of  a  probate  judge,  Avho  shall  hold  his  office 
for  the  term  of  four  years.  [Amendment,  proposed  1861;  ratified  %d  September , 
1SG2."^> 

Jurisdiction  of  county  courts. 

Sec.  8.  The  county  courts  shall  have  original  jurisdiction  of  actions  of  forcible 
entry  and  detainer,  of  jn-oceedings  in  insolvency,  of  actions  to  prevent  or  abate 
a  nuisance,  and  of  all  such  special  cases  and  proceedings  as  are  not  otherwise 
jDrovided  for;  and  also,  such  criminal  jurisdiction  as  the  legislatiu'e  may  j^re- 
scribe;  they  shall  also  have  appellate  jurisdiction  in  all  cases  arising  in  coui-ts 
lield  by  justices  of  the  peace  and  recorders,  and  in  such  inferior  coui-ts  as  may 
be  established,  in  jiursuance  of  section  one  of  this  article,  in  their  resjiective 
counties.  The  county  judges  shall  also  hold  in  theii'  several  counties  probate 
courts,  and  perform  such  duties  as  probate  judges  as  may  be  prescribed  by  law. 

(a)  Original  section:  recover  damages  for  trespass  upon  lands,  regardless  of 

Sec.  6.  The  district  courts  shall  have  original  juris-  the  amount  of  damages  claimed.    Holman  vs.  'Jaylor, 

dictiou,  in  law  and  equitj',  in  all  civil  cases  where  the  31  Cal.  338. 

amount  in  dispute  exceeds  two  hundred  dollars,  ex-  Since  the  amendment  of  this  section  district  courts 

elusive  of  interest.    In  all  criminal  cases  not  otherwise  have  no  jurisdiction   to   try  issues  framed  in  probate 

provided  for,  and  in  all  issues  of  fact  joined  in  the  pro-  courts;  and  an  act  attempting  to  confer  such  jurisdic- 

bate  courts,  their  jurisdiction  shall  be  unlimited.  tion  is  void.   Matter  of  Will  of  Bo^ven,  .34  Cal.  t;H2. 

The  jurisdiction  of  district  courts  is  confirmed  and  It  is  the  intention  of  this  clause  to  give  the  district 

defined  by  the  constitution,  and  no  statute  can  deprive  courts  exclusive  jurisdiction  in  those  casts  only  in 

them  of  their  powers.     Consequently  tliey  have  juris-  which  the  rirjht  to  the  possession  is  involved.   Pollock 

dictiou  of   mining  claims  if  the    amount  in  coniro-  vs.  Cummings,  b8  Cal.  083. 

versy  is    sufficient,   though  the  legislature  says  tlint  The  constitutional  jurisdiction  of  the  district  courts 

justices  of  the  peace  shall   have  jm-isdictiou  of  min-  in  "  equity  cases"  does  not  prevent  the  legislature  from 

ing  claims.     Hicks  vs.  Bell,  3  Cal.  219;    freeman  vs.  prescriljiug  the  procedure  by  wliich  such  jurisdiciion 

Powers,  7  Cal.  104.  is  to  be  exercised,  unless  the  regulations  substantially 

When  the  principal  sum  sued  for  is  less  than  S200,  impair  the  constitutional  power  of  the  court  or  pi  ac  ti- 
the district  court  has  not  jurisdiction.  Arnold  vs.  Van  cally  defeat  its  txercifC.  Ex  parte  Barker,  4'.l  Cal.  4io. 
Brunt.  4  Cal.  89.  (b)  In  regard  to  tliis  section,  it  is  to  be  noted  that  the 

nistrii  t  courts  have  no  appellate  jurisdiction.  Eeed  clause  relating  to  naturalization  papers  was  not  a  part 

%'S.  McCormick,  4Cal.  342.  of  the  section  as  proposed  by  the  legislature  of  ISGl 

District  courts  may  render  judgment  for  less  than  (see  1861,  6r.4).    It  will  further  be  noted  that  the  clause 

$200.   Jackson  vs.  Whartenby,  5  Cal.  94.  relating  to  the  probate  judgeship  in  the  cty  and  county 

A  law  vesting  justices  of  the  pe  ice  with  jurisdiction,  of  San  Francisco,  formed  a  part  of  the  eightli  section 

where  the  amount  in  dispute  exceeds  the  sum  specified  and  not  of  the  seventh  in  the  amendments  propipsed  in 

in  the  constitution,  is  void.   Zander  vs.  Coe,  5  Cal.  230.  18fU.     The  legislatin-e  of  1802   (see  1802,  584)  changed 

The  district  judge  while  sitting  in  an  equity  case  is  and  declared  adopted  the  amendments  as  aljove  given 

possessed  of  all  the  powers  of  a  court  of  chancery,  in  the  text.     It  will,  however,  be  further  noted  that  the 

Sanford  vs.  Head,  5  Cal.  297.  amendments  in  regard  to  the  judicial  department  are 

The  district  courts  have  "  original  jurisfliction  in  all  to  the  entire  Article  VI,  and  not  to  the  separate  sections, 

cases  in  equity,"  and  a  statute  depriving  them  of  that  (r)  The  seventh  section  of  the  original  .\i-tic  e  was: 

jurisdiction  or  transferring  it  to  any  otlier  court  is  un-  Sec.  7.  The  legislature  thall  provide  forthe  election, 

constitutional  and  void.   Willis  vs.  Farley,  24  (^al.  4'.i0.  by  the   people,  of  a  clerk  of  the  supreme  court,  and 

The  district  courts  have  original  jurisdiction  to  issue  county  clerks,  district  attorniys.  sheriffs,  coroners,  and 

•writs  of  mandamus,  certiorari,  prohibition  and  habeas  other  necessary  officers;  and  shall  fix  by  law  their  du- 

corpus,  notwithstanding  the  supreme  court  has  like  ties   and   compensation.     County  clerks  shall    be,  ex 

jurisdiction.   Perry  vs.  Ames,  20  Cal.  372.  officio,  clerks  of  the  district  courts  in  and  lor  their 

Xhe  district  courts  have  jurisdiction  of  all  actions  to  respective  counties. 

55 


xli-xlii       COXSTITUTION  OF  THE  STATE  OF  CALIFOEXIA. 

The  coiiuty  coui-ts  and  their  judges  shall  also  have  power  to  issue  "writs  of 
habeas  corpus,  on  petition  by  or  on  behalf  of  any  person  in  actual  custody  iu 
theii-  respective  counties.  [Ameiuhnent,  proposed  1861;  ratified  Sd  September, 
1862/^^ 

Jasfices  of  the  peace — Proviso. 

Sec.  9.  The  legislature  shall  determine  the  number  of  justices  of  the  peace  to 
be  elected  in  each  city  and  township  of  the  state,  and  fix  by  law  their  powers, 
duties,  and  resiDonsibilities;  provided,  such  powers  shall  not  in  any  case  trench 
upon  the  jurisdiction  of  the  several  courts  of  record.  The  supreme  coiu-t,  the 
district  courts,  county  courts,  the  probate  courts,  and  such  other  courts  as  the 
legislature  shall  j^rescribe,  shall  be  courts  of  record.  {x\inendment,  proposed 
1861;  ratified  M  September,  1862."^ 

xUi.  Jurisdiction  of  recorders'  and  other  inferior  municipal  courts. 

Sec.  10.  The  legislature  shall  fix  by  law  the  jurisdiction  of  any  recorder's,  or 


(a)  Eiglitli  section  of  original  article: 
Skc.  8.  There  shall  be  elected  iu  each  of  the  organ- 
ized couDties  of  this  state,  one  county  judge,  whso 
shall  hold  his  office  for  four  years.  He  shall  hold  the 
county  coiu't  and  perform  the  duties  of  surrogate  or 
probate  judge.  The  county  judge,  with  two  justices  of 
the  x>eace,  to  be  designated  according  to  law,  shall  hold 
courts  of  sessions,  with  such  criminal  jurisdiction  as 
the  legislature  shall  prescribe,  and  he  shall  perform 
such  other  duties  as  shall  be  required  by  law. 

The  term  •'  special  cases"  does  not  include  any  class 
of  cases  for  which  courts  of  general  jurisdiction  have 
always  supplied  a  remedy;  it  must  be  confined  to  such 
new  cases  as  are  the  creation  of  statutes.  Parsons  vs. 
Tuohimne  County  Water  Company,  5  Cal.  43. 

Held,  under  the  original  section,  that  justices  of  the 
peace  were  not  to  be  regarded  as  supernumeraries  to  the 
court  of  sessions,  but  necessary  officers,  who  had  to 
begin  with  and  continue  through  a  trial.  People  vs. 
Ah  Chung,  5  Cal.  103. 

Held,  under  the  ninth  section  of  the  original  article, 
that  the  county  court  had  no  jurisdiction  to  enforce  a 
mechanic's  lien  where  the  amount  iu  controversy  ex- 
c.  eded  S200.   Brock  vs.  Bruce,  .5  Cal.  279. 

The  constitution  cannot  be  construed  t)  confer  ex- 
clusive original  jurisdiction  in  all  special  ra>es  upon 
<  ounty  courts.  Justices'  courts  have  jurisdiction  in 
cases  of  forcible  entry.  O'Callaghau  vs.  Booth,  6  Cal. 
03:  Small  vs.  Gwinn,  6  Cal.  447. 

Insolvency  cases  are  "special  cases;"  and  it  was  an 
exercise  of  legitimate  power  in  the  legislature  to  confer 
jurisdiction  iu  such  cas-s  upon  both  county  and  district 
courts.   Harper  vs.  Freelon,  0  Cal.  7Ci. 

The  grant  of  authority  to  county  judges  to  award  in- 
junctions iu  cases  brought  iu  district  courts  is  not 
trenching  upon  the  limits  of  jurisdiction  of  any  of  the 
courts;  it  is  a  mere  jjower  to  issue  proce-ss  auxiliary  to 
the  proper  jurisdiction  of  the  district  courts.  Thomp- 
son vs.  Williams,  6  C.l.  88. 

The  act  of  March  27,1850.  conferring  upon  the  county 
court  the  x)ower  of  incorporating  towns,  was  uncon- 
stitutional. Legislative  fimctions  cannot  be  exercised 
by  the  judiciary.   People  vs.  Nevada,  6  Cal.  143. 

Under  the  act  to  reorganize  San  Mateo  County  (1857, 
22'2)  an  election  was  held,  and  Fox  was  elected  county 
judge.  There  was  no  ijroclamation  of  the  governor  for 
the  election.  At  tlie  general  ilectiou  iu  lx."i8  an  elec- 
tion was  lield  pursuant  to  i>roclamation,  and  Templeton 
was  elected  to  the  same  office:  Held,  that  Fox  was  en- 
titled to  th"  office  for  a  term  of  four  years,  commencing 
from  th<'  time  of  his  as.'^umption  of  the  office.  Fox  vs. 
Te)npleton,  12  Cal.  394. 

The  act  giving  jurisdiction  over  the  subject  of  con- 
tested elei  tioub  to  the  county  judge  is  constitutional; 
it  is  one  of  the  "  special  cases"  provided  for.  Saunders 
Vis.  Hayues,  13  Cal.  14.'5. 

The  county  judge  may  grant  an  injunction  in  cases 
in  the  district  courts,  but  he  cannot  appoint  a  receiver; 
at  lea^t  not  as  a  tiling  distinct  from  the  injunction, 
liuthrauffvs.  Kresz,  13  Cal.  039. 

The  legi--lature  may  fix  the  commenceoient  of  the 
term  and  also  the  time  of  election  of  a  county  judge, 
but  an  act  limiting  the  term  to  anything  less  than  four 
years  is  void  pro  tanto.  Wchtbrook  vs.  liosborough,  14 
Cal.  l.HO. 

Wlicre  an  incumbent  resigns  before  the  expiration  of 

his  term,  there  is  a  vacancy  to  be  filled  by  the  governor; 

and  his  appointees  hold  until  the  next  general  election, 

and  until  his  succtF-or  fjualifies.    Id. 

An  election  to  fill  such  a  vacancy  is  a  special  elec- 


tion, and  the  governor's  proclamation  is  essential  to  its 
validity.    Id. 

The  statute  giving  to  county  courts  jurisdiction  in 
proceedings  by  mandamus  is  not  unconstitutional 
Jacks  vs.  Day,  15  Cal.  91. 

The  proceedings  before  the  coriJorate  authorities  of 
the  town,  or  the  county  coiu-t,  provided  for  by  the  act 
of  January  24,  18(J0,  regulating  the  mode  of  settling 
claims  to  lots  iu  town  sites  situated  on  public  lands  in 
Bumboldt  County,  is  a  "  special  case"  within  the  mean- 
ing of  the  constitution.    Ricks  vs.  Reed,  19  Cal.  551, 

A  i^roceeding  to  enforce  a  mechanic's  lien  under  the 
mechanic's  lien  law  of  1861  is  a  "special  case"  of 
which  the  legislature  might  proiierly  give  jurisdiction, 
to  the  county  court  under  the  constitution.  McNiel  vs. 
Holland,  23  Cal.  144. 

The  statutory  iiroceeding  for  contesting  an  electioa, 
as  provided  for  in  the  act  of  1850,  was  a  "  special  case." 
Dorsey  vs.  Barry,  24  Cal.  449. 

The  grant  to  the  county  court  of  jurisdiction  to  pre- 
vent or  abate  nuisances,  docs  not  deprive  the  district 
courts  of  concurrent  juri-diction  under  their  equity 
powers.  Courtwrigbt  vs.  Bear  River  &  Auburn  W.  &  M. 
Co.,  30  Cal.  .573. 

The  constitxUion  does  not  confer  on  the  jsrobate  court 
jurisdiction  of  all  matter.s  relating  to  the  estates  of 
deceased  persons,  but  of  such  matters  only  as  the  statute 
directs  it  to  exercise  jurisdiction  over.  Bush  vs.  Lind- 
Bey.  44  Cal.  121. 

The  constitution  has  left  to  the  legislature  to  deter- 
mine v/hether  juri-diction  over  any  special  case  shall 
be  vested  in  the  county  court  or  some  other  court. 
Matter  of  Marks,  45  Cal.  199. 

Writs  of  mandate  are  not  "  special  cases"  within  the 
meaning  of  the  constitution.  People  vs.  Kern  Count.. , 
45  Cal.  679. 

An  act  attemi)ting  to  confer  power  on  the  county 
coiu-t  to  issue  writs  of  mandate  is  imconstitiitiouaL 
Peox^le  vs.  Kern  County,  45  Cal.  679. 

Proceedings  for  tlie  condemnation  of  water  to  supply 
cities  wiih  x>ure  water,  and  the  right  of  way  to  conduct 
it,  are  "special  cases."  Spencer  Creek  Water  Co.  vs. 
Vallcjo,  48  (;al.  70. 

The  legislature  cannot  confer  jurisdiction  of  "  siwcial 
cases"  upon  the  county  judge,  but  only  upon  one  of  the 
courts  mentioned  in  the  constitution.    Spencer  Creek 
Water  Company  vs.  V'allcjo.  48  Cal.  70. 
(h)  Ninth  section  of  original  Article: 

Sec.  9.  The  county  courts  shall  have  such  jurisdic- 
tion, in  cases  arising  in  justicts'  courts,  and  in  special 
cases,  as  the  legislature  may  prescribe,  but  shall  have 
no  original  civil  jurisdictiun,  except  in  such  siJecial 
cases. 

The  jurisdiction  of  justices  of  the  peace  is  limited 
to  cases  in  which  the  value  of  the  thing  in  controversy 
does  not  exceed  the  sum  specified,  except  in  proceed- 
ings under  the  statute  concerning  f  orcibl.;  entry.  Wlu  u 
the  thing  in  dis;nite,  though  a  mining  claim,  is  worth 
more  than  tliat  unii,  the  justice  has  no  jurisdiction. 
Freeman  vs.  Powers,  7  Cal.  104. 

Under  the  ninth  section  of  the  original  Article:  Held, 
that  the  county  court  had  the  sole  appellate  jurisdic- 
tion in  all  cast  s,  civil  and  criminal,  arising  in  justices' 
courts;  and  th  .t  the  court  of  sessions  had  no  appellate 
jurisdiction.   People  vs.  Fowler,  9  Cal.  85. 

The  act  of  April  27,  1863,  "  concerning  the  unlawful 
holding  ovtr  of  lands,  teneimnts  and  otlier  jiosscs- 
Bions,"  and  atlemi>ting  to  vest  jurisdiction  of  holding- 
over  casen  in  justices  of  the  peace,  was  unconstitutional. 
Caulfleld  vs.  Stevens,  28  Cal.  118. 


56 


CONSTITUTION  OF  THE  STATE  OF  CALIFORNIA,     xlii-xliii 

other  inferior  municipal  court,  wliicli  maybe  established  in  pursuance  of  section 
one  of  this  article,  and  shall  fix  by  law  the  powers,  duties  and  responsilnlities 
of  the  judges  thereof.     [Amendment, jjvoposed  18G1;  ratiJiedZd September ,  18G2."" 

Clerk  of  supreme  court — Gounli/  officers. 

Sec.  11.  The  legislatiu-e  shall  jirovide  for  the  election  of  a  clerk  of  the 
supreme  court,  county  clerks,  district  attorneys,  sherifls  and  other  necessaiy 
officers,  and  shall  fix  by  law  their  duties  and  compensation.  County  clerks  shall 
be  ex  officio  clerks  of  the  coui'ts  of  record  in  and  for  their  respective  counties. ^"^ 
The  legislature  may  also  provide  for  the  appointment  by  the  several  district 
courts  of  one  or  more  commissioners  in  the  several  counties  of  their  respective 
districts,  with  authority  to  perform  chamber  business  of  the  judges  of  the  dis- 
trict courts  and  county  courts,  and  also  to  take  depositions  and  to  perfomi  such 
other  business  connected  with  the  administration  of  justice  as  may  be  prescribed 
by  law.     [Amendment,  proposed  1861;  ratified  3d  September,  1862,^"' 

Ter)iis  of  courts. 

Sec.  12.  The  times  and  places  of  holding  the  terms  of  the  several  courts  of 
record  shall  be  provided  for  by  law.  [Amendment,  proposed  18G1;  ratified  3d 
September,  1862.^'*' 

Fees  and  perquisites. 

Sec  13.  No  judicial  officer,  except  justices  of  the  joeace,  recorders  and  com- 
missioners, shall  receive  to  his  own  use  any  fees  or  perquisites  of  office.  [Amend- 
me)d,  p>roposed  18G1;  ratified  3d  September,  1862.'*^^ 

Publication  of  opinions  of  supreme  court. 

Sec.  14.  The  legislature  shall  provide  for  the  speedy  publication  of  such 
opinions  of  the  supreme  court  as  it  may  deem  expedient;  and  all  opinions  shall 
be  free  for  publication  by  any  person.  [Amendment,  proposed  18G1;  ratified 
M  Setpember,  1862.^" 

xliii.   Compensation  of  judges.  -• 

Sec.  15.  The  justices  of  the  supreme  court,  district  judges,  and  county  judges, 
shall  severally,  at  stated  times  during  their  continuance  in  office,  receive  for 
their  services  a  compensation,  whicli  shall  not  be  increased  or  diminished  during 
the  term  for  which  they  shall  have  been  elected:  provided,  that  county  judges 
shall  be  j)aid  out  of  the  county  treasuiy  of  their  respective  counties.  [Amend- 
ment, proposed  18G1;  ratified  ■id  September,  18G2.'^' 

(n)   Tenth  section  of  original  Article:  courts  Khill  be  held  at  the  county  seats.    FpUam  V6. 

Sec.  111.  The  times  and  jlaces  of  hokliiigthe  terms  Sutter  County.  8  Cal.  378. 

of  the  supreme  court,  and  the  general  and  special  terms  The  constitution  does  not   iirohibit  the  legislature 

of  the  distiict  courts  within  ttie  several  districts,  shall  from  authorizing  a  judgment  to  be  entered  in  vacation, 

be  provided  for  by  law.  Tcople  vs.  Jones.  20  Cal.  50. 

[I))  \  county  clerk  may  issue  process  and  attest  pro-  (i)   Thivteeuth  section  of  original  Article: 

ceedings  of  the  courts  of  which  he  is  ex  officio  clerk  Sec.  i:i.    Tribunals  for  conciliation   may  bo  estab- 

over  his  signature  as  county  chrk,  and  leave  to  the  title  lisheJ,  with  such  powers  and  duties  as  may  be  pre- 

of  the  proceedings  or  contents  of  the  instruments  the  scribed  by  law;  but  such  tribunals  shall  have  no  power 

identification  of    the    courts  to   which  they  belong,  to  render  judgment  to  be  obligatory  on   the  partif  b, 

Toucbard  vs.  Crow,  20  Cal.  l.iO.  except  they  vohintarily  submit  iheir  matters  in  difl'er- 

(c)   Eleventh  section  of  original  Article:  euce,  «nd  agree  to  abide  the  judgment,  or  assent  thereto 

Sec.  11.  No  judicial  officer,  except  a  justice  of  the  in  the  presence  of  such  tribunal,  in  such  cas-s  as  shall 

peace,  shall  receive,  to  his  own  use,  any  fees  or  per-  be  prescribed  by  law. 

quisites  of  office.  Since  the  occupation  of  California  by  tlie  Americans, 

Under  the  eleventh  section  of  the  original  Article:  the  Mexican  proceeding  of  conciliation  has  been  decm- 

Held,  that  when  the  constitution  exempted  justices  of  ed  a  useless  formality.   Von  Schmidt  vs.  Huntington, 

the  peace  from  the  operation  of  the  restraint  in  regard  1  Cal.  55. 

to  fees  and  perquisites,  it  meant  to  ex>  nipt  those  also,  (/)  Fourteenth  section  of  original  .\rticle: 

by  whatever  name  called,  who  were  intrusted  with  the  Sec.  14.  The  legislature  shall  determine  the  number 

duties  assigned  to  justices,  and  th;it  consequently  the  of  justices  of  the  peace,  to  be  elected  in  each  county, 

recorder  of  the  city  of  Sacramento  was  entitled  to  city,  town,  and  incorporated  village  of  the  state,  and 

collect  fees.   Curtis  vs.  Sacramento,  13  Cal.  2'JO.  fix  by  law  their  powers,  duties  and  responsibililies.    It 

('/)  Twelfth  section  of  original  Article:  shall  also  determine  in  what  cases  appeals  may  be 

Sec.  12.  The  legislature  shall  provide  for  the  speedy  made  from  justices'  courts  to  the  county  court, 

publication  of  all  statute  laws,  and  of  such  judicial  {o)   Original  section: 

decisions  as  it  may  deem  expedient;  and  all  laws  and  S>c.  1.5.  Tht- justices  of  the  supreme  court  and  judges 

I  judicial  decisions  shall  be  free  for  publication  by  any  of  the  district  courts  shall  severally,  at  stated  times 

\persun.  during  their  continuance  in  oflice.  receive  for  their  ser- 

The  constitution  docs  not  require  that  the  district  vices  a  compensation  to  be  paid  out  of  the  treasury, 

57 


xliii-xliv    CONSTITUTION  OF  THE  STATE  OF  CALIFOKNIA. 

Disabilities  of  judges. 

Sec.  16.  The  justices  of  the  supreme  court,  and  the  district  judges,  and  the 
county  judges,  shall  be  ineligible  to  any  other  office  than  a  judicial  office,  during 
the  term  fo'i-  which  they  shall  have  been  elected.  [Amendment,  proposed  18G1; 
ratified  M  September,  1862.^^) 

Charge  to  juries. 

Sec  17.  Judges  shall  not  charge  juries  with  respect  to  matters  of  fact,  but 
may  state  the  testimony  and  declare  the  law.  [Amendment,  proposed  18G1; 
ratified  3d  September,  1802.^"' 

Style  of  jirocess. 

Sec'  18.  The  style  of  all  process  shall  be,  "  The  People  of  the  State  of  Cali- 
fornia," and  all  prosecutions  shall  be  conducted  in  their  name  and  by  their- 
authoi-ity.     [Amendment,  proposed  18G1;  ratified  M  September,  1862. ^'^ 

Effect  of  amendments. 

'  Sec  19.  In  order  that  no  inconvenience  may  result  to  the  public  service  from 
the  taking  effect  of  the  amendments  proposed  to  said  Article  Six  by  the  legis- 
lature of  eighteen  hundred  and  sixty-one,  no  officer  shall  be  superseded  thereby, 
nor  shall  the  organization  of  the  several  courts  be  changed  thereby,  until  the 
election  and  qualification  of  the  several  officers  provided  for  in  said  amend- 
ments.    [Amendmeiit,  proposed  1861;  ratified  dd  September,  1862.^"^^ 


AKTICLE  VII. 

MILITIA. 

xliv.   Organization  and  discipline. 

Section  1.  The  legislature  shall  provide  by  law  for  organizing  and  disciplin- 
ing the  militia,  in  such  manner  as  they  shall  deem  expedient,  not  incompatible 
with  the  constitution  and  laws  of  the  United  States. 

Officers. 

Sec  2.  Officers  of  the  militia  shall  be  elected  or  appointed  in  such  a  manner 
as  the  legislature  shall  from  time  to  time  direct,  and  shall  be  commissioned  by 
the  governor. 

Governor  to  call  out. 

Sec  3.  The  governor  shall  have  power  to  call  forth  the  militia,  to  execute 
the  laws  of  the  State,  to  sujjpress  insurrections,  and  repel  invasions. 


•which  Hhall  D'lt  bt-  IncrcaBed  or  diminiebcd  duriug  the  of  fact  or  as  to  the  weight  of  evidence.  Battersby  vs. 

tenu  for  whirli  tiny  hhall  have  beeu  elected.     The  Abbott,  9  Cal.  5G.5. 

county  judgfh  hhiill  also  Kovt  rally,  at  Ktuted  times,  re-  This  provision  is  violated  whenever  a  judge  so  in- 

celvf  for  tlicir  h<T\ic<H  a  coiiii  ensatiou  to  be  jjaid  out  structs  as  to  force  the  jury  to  a  particular  conclusiou 

of  the  county  tn-BKury  of  their  rcHpi  ctive  counties,  upon  the  whole  or  any  part  of  the  case,  or  to  takeaway 

which  Khali  n<it  be  increased  or  diminished  during  the  their  exclusive  right  to  weigh  the  evidence  and  deter- 

tenu  for  uhlch  they  vliall  have  been  elected.  mine  the  facts.     And  such  an  error  would  prima  facie 

The    provisicns  rchpccling    the   salaries  of  district  be  sufficient  cause  for  reversing  a  judgment;  but  no 

judoeB  do  not  exemjit  those  officers  U'Ux  the  necessity  more  importance  is  to  be  attached  to  an  error  of  this 

of  an  appropriation  for  that  purpose  by  the  legislature.  l£in<l  than  any  other.   People  vs.  Ybarra,  17  Cal.  H'jC. 

Myi-nt  vs.  English,  'J  Cal.  341.  The  right  of  a  judge  to  state  the  evidence  includes 

(«/  Origltittl  Kcction:  th<:  riuht  to  state  tliut  there  is  no  evidence  as  to  partic- 

Kec.  K..  The  juHtlces  of  the  supreme  court  and  dis-  ular  facts.    People  vs.  Dick,  34  Cal.  003. 

trtct  judg<-n  shall  \f  Inellj^ble  to  any  other  office  dur-  (c)   Original  se<ti()n: 

iug  the  term  for  whi<h  tliev  shall  huv<--  been  elected.  Hkc.  1H.  The  style  of  all  process  shall  be,  "  The  Peo- 

{!,)  The  Mventeenth  i-ectlon  of  the  original  Article  pie  of  the  State  of  California;"  all  the  prosecutions 

MTBH  in  the  mme  Words.  shall  be  conducted  iu  the  name  and  by  the  authority  of 

The  r{uei.tinn  of  fraudulent  Intent  Is  a  question  of  the  sumo. 

fact;  but  «h>re  the  law  declares  certain  fa<-ts  conclu-  («/)   The  jurisdiction  of  the  old  courts  continued  un- 

bIvc  evlden' e  of  fraud,  a  verdict  against  such  conclvi-  imp.iired  imtil  the  organization  of  the  new  courts  by 

sion  itill  1>e  set  aside.   liilliugs  vs.  I'illings. 'i  Cal.  107.  which  they  were  to  be  superseded.   Gilliss  vs.  Uaructt, 

It  ia  error  for  a  court  to  charge  a  Jury  as  to  a  question  38  Cal.  303. 


58 


CONSTITUTION  OF  THE  STATE  OF  CALIFORNIA,      xlv-xlvi 
ARTICLE  VIII. 

STATE    DEBTS. 

xlv.  Restrictions  on  logislatire  power. 

The  legislature  shall  not  iu  any  manner  create  any  debt  or  debts,  liability  or 
liabilities,  which  shall  singly,  or  in  the  aggregate,  with  any  preAious  debts  or 
liabilities,  exceed  the  sum  of  three  hundred  thousand  dollai>5,  except  in  case  of 
war,  to  repel  invasion,  or  suppress  insurrection,  unless  the  same  shall  be  author- 
ized by  some  laAV  for  some  single  object  or  work,  to  be  distinctly  specified 
therein,  which  law  shall  jirovide  ways  and  means,  exclusive  of  loans,  for  the 
payment  of  the  interest  of  such  debt  or  liability,  as  it  falls  due,  and  also  pay 
and  discharge  the  principal  of  such  debt  or  liability  within  twenty  years  from 
the  time  of  the  contracting  thereof,  and  shall  be  iiTepealable  until  the  principal 
and  interest  thereon  shall  be  j)aid  and  discharged;  but  no  such  law  shall  take 
eflect  until,  at  a  general  election,  it  shall  have  been  submitted  to  the  people, 
and  have  received  a  majority  of  all  the  votes  cast  for  and  against  it  at  such 
election;  and  all  money  raised  by  authority  of  such  laAv,  shall  be  applied  only 
to  the  specified  object  therein  stated,  or  to  the  payment  of  the  debt  thereby 
created;  and  such  law  shall  be  published  in  at  least  one  newsj^aper  in  each 
judicial  district,  if  one  be  published  therein,  throughout  the  State,  for  three 
months  next  preceding  the  election  at  which  it  is  submitted  to  the  people. '^^ 

ARTICLE  IX. 

EDUCATION. 

xlvi.  Superintendent  of  public  instruction. 

Section  1.  A  superintendent  of  public  instruction  shall,  at  the  special  election 
for  judicial  officers  to  be  held  in  the  year  eighteen  lumdred  and  sixty- three,  and 
every  four  years  thereafter  at  such  special  elections,  be  elected  by  the  qualified 
voters  of  the  State,  and  shall  enter  upon  the  duties  of  his  office  on  the  first  day 
of  December  next  after  his  election.  [Amendment,  proposed  1861;  ratified  3tZ 
September,  1862.'"' 

Duties  of  legislature — School  fund. 

Sec.  2.  The  legislature  shall  encourage,  by  all  suitable  means,  the  promo- 
tion of  intellectual,  scientific,  moral,  and  agricultural  improvement.  The  jDro- 
ceeds  of  all  land  that  may  be  gTanted  by  the  United  States  to  this  State  for  the 

(a)   The  meaning  of  tliis  section  is  too  plain  to  permit  liability  against  the  state.     Though  under  the  contract 

the  courts  to  resort  to  rules  of  construction  to  alter  it.  with  Estill  provided  for  the  payment  to  him  of  §10,000 

Hence,  the  act  of  April  8,  185.5,  providing  for  the  con-  per  month,  there  could  be  no  debt  on  the  part  of  tUe 

Btruction  of  a  wagon  road  to  the  Sierra  Nevada,  and  state  until  the  services  were  rendered.   California  vs. 

authorizing  the  board  of  commissioners  to  contract  for  McCauley,  15  Cal.  429. 

the  same  at  a  price  not  exceeding  8300,000,  while  the  Taxes  are  not  "debts"  within  the  meaning  of  this 

existing  indebtedness  of  the  state  exceeded  that  sum  article.   Perry  vs.  Washburn.  20  Cal.  318. 

(said  act  containing  no  provision  fur  submission  of  the  The  evident  intention  was  to  impose  limitations  upon 

question  to  the  peox^le),  was  void.   People  vs.  Johnson,  the  general  power  of  the  legislature  to  create  deb's, 

6  Cal.  499.  leaving  it  free,  however,  from  such  restrictions  iu  gnat 

The  act  of  April  18,  1856,  providing  for  the  erection  emeraencies  caused  by  war,  invasion  or  insurrection, 

of  a  state  capitol  at  a  cost  not  to  exceed  S300,000,  held  Franlilin  vs.  State  Board  of  Examiners.  23  Cal.  173. 

void.   Nougues  vs.  Douglass,  7  Cal.  H5.  A  law  which  appropriates  a  sum  of  money  for  the 

This  article  is  an  express  restriction  upon  the  powers  future,  and  directs  certain  payments  to  be  made  out  of 

of  the  legislature,  and  there  is  no  power  in  the  judic-  the  same  at  designated  periods  from  year  to  yearthere- 

iary  to  set  it  aside,  whatever  inconvenience  may  result  after,  and  also  imposes  a  special  tax  and  sets  apart  the 

from  a  legitimate  application  of  the  i^rovision.   Id.  proceeds  thereof  as  a  fund  to  meet  the  sums  to  be  paid 

All  debts  contracted  in  violation  of  this  article  are  as  they  become  payable,  does  not  create  a  debt  within 

void,  and  the  legislature  has  no  power  to  levy  a  tax  or  the  meaning  of  the  prohibitory  clause  of  the  constitu- 

ajipropriate  money  for  the  payment  thereof.   Id.  tiou.   People  vs.  Pacheco,  27  Cal.  175. 

This  article  only  applies  to  the  state  as  a  corporation,  {0)  Original  section: 

and  does  not  prevent  the  state  auth<irizing  counties  or  Section  1.  The  legislature  shall  provide  for  the  elec- 

municipal  corijorations  to  create  debts,  when  the  debt  tion,  by  the  people,  ot  a  superintendent  of  public  in- 

of  the  state  itself  is  wp  to  the  constitutional  limits,  struction,  who  shall  hold  his  othce  for  three  years,  and 

Pattison  vs.  Yuba  County,  13  Cal.  175.  whose  duties  shall  be  prescribed  bylaw,  and  who  shall 

The  act  of  March  21,  185G,  creating  a  board  of  state  receive    such   compeusatiou  as    the  legislature   may- 
prison  commissioners  and  defining  their  duties,  does  direct, 
not  violate  this  article.    It  does  not  create  a  debt  or 

59 


xlvi-xlvii    CONSTITUTION  OF  THE  STATE  OF  CALIFORNIA. 

support  of  schools,  wliicli  may  he  sold  or  disposed  of,  and  the  five  hundred 
thousand  acres  of  land  granted  to  the  new  states,  under  an  act  of  congress  dis- 
tributing the  proceeds  of  the  public  lands  among  the  several  states  of  the  Union, 
approved  a.d.  1841;  and  all  estates  of  deceased  persons  who  may  have  died 
■without  lea\dng  a  will,  or  heir,  and  also  such  per  cent,  as  may  be  gTanted  by 
congress  on  the  sale  of  lands  in  this  state,  shall  be  and  remain  a  perpetual  fund, 
the  interest  of  which,  together  with  all  the  rents  of  the  unsold  lands,  and  such 
other  means  as  the  legislature  may  provide,  shall  be  inviolablj^  appropriated  to 
the  supjDort  of  common  schools  throughout  the  State.*^' 

ScJiools. 

Sec.  3.  The  legislature  shall  provide  for  a  S3-stem  of  common  schools,  by 
which  a  school  shall  be  [kept  up  and  supported  in  each  district  at  least  three 
months  in  every  year;  and  any  school  district  neglecting  to  kee})  and  sup^jort 
such  a  school  may  be  deprived  of  its  proportion  of  the  interest  of  the  public 
fund  during  such  neglect. 

Uiiivey'iiiiy. 

Sec.  4.  The  legislature  shall  take  measures  for  the  protection,  improvement, 
or  other  disposition  of  such  lauds  as  may  have  been,  or  may  hereafter  be 
reserved  or  granted  by  the  United  States,  or  any  person  or  i)ersons,  to  the  state 
for  the  use  of  a  university;  and  the  funds  accruing  from  the  rents  or  sale  of 
such  lauds,  or  from  any  other  source  for  the  purpose  aforesaid,  shall  be  and 
remain  a  permanent  fund,  the  interest  of  which  shall  be  applied  to  the  support 
of  said  universitj^  with  such  branches  as  the  public  convenience  may  demand, 
for  the  promotion  of  literature,  the  arts  and  sciences,  as  ma}-  be  authorized  by 
the  terms  of  such  grant.  And  it  shall  be  the  duty  of  the  legislature  as  soon  as 
may  b.e,  to  provide  effectual  means  for  the  improvement  and  permanent  security 
of  the  funds  of  said  university. 

ARTICLE  X. 

MODE    OF    AMENDING    AND    REVISING    THE     CONSTITUTION. 

xlvii.  Proposal  of  amendments — Submission  to  people. 

Section  1.  Any  amendment  or  amendments  to  this  constitution,  may  be  pro- 
posed in  the  senate  or  assembl}';  and  if  the  same  shall  be  agreed  to  by  a  majority 
of  the  members  elected  to  each  of  the  two  houses,  such  proposed  amendment 
or  amendments  shall  be  entered  on  their  journals,  with  the  yeas  and  nays  taken 
thereon,  and  I'ef erred  to  the  legislature  then  next  to  be  chosen,  and  shall  be 
published  for  three  months  next  preceding  the  time  of  making  such  choice. 
And  if,  in  the  legislature  next  chosen  as  aforesaid,  such  proposed  amendment 
or  amendments  shall  be  agreed  to  by  a  majority  of  all  the  members  elected  to 
each  house,  then  it  shall  be  the  duty  of  the  legislature  to  submit  such  proposed 
amendment  or  amendments  to  the  people,  in  such  manner  and  at  such  time  as 
the  legislature  shall  prescribe;  and  if  the  people  shall  approve  and  ratify  such 
amendment  or  amendments,  by  a  majority  of  the  electors  qualified  to  vote  for 
members  of  the  legislature  voting  thereon,  such  amendment  or  amendments 
shall  Ijecome  part  of  the  constitution. 

(a)  The  provision  of  the  aft  of  April  22,  ISfil,  requir-  merely  a  provision  as  to  the  manner  in  which  a  certain 
ing  that  the  proceeds  of  sales  of  the  sixteenth  and  fvind  shall  be  appropriated,  and  subject  therefore  to 
thirty-sixth  sections  shall  coiistituti-  a  state  fund  in-  th(^  future  control  of  tlie  legislature.  Id. 
Rtead  of  being  applied  for  the  iKiictit  of  tlie  towuKhips  This  cliinse  iuclud<'s,  as  "  UK^aus,"  any  fund  arising 
in  which  the  bonds  an-  situated,  is  constitutional  and  from  taxation  for  scliool  purposes,  levied  under  gen- 
valid.    Wyuian  vs.  Banvard,  Ti  Cal.  !>2i.  eral  laws  passed  for  that  purpose;  sothatan  actdivert- 

The  schi)ol  land  act  of  Ai)ril  20,  18.58,  is  not  a  grant  ing  such  fund  to  any  other  than  school  puriioses  is  uu- 

ot  the  interest  money  to  the  several  townships,  but  constitutional.    Crosby  vs.  Lyon,  37  Cal.  242. 

60 


CONSTITUTION  OF  THE  STATE  OF  CALIFORNIA,  xlvii-xlviii 

Coni'ention, 

Sec.  2.  And  if,  at  any  time,  two  thirds  of  tlie  senate  and  assembly  shall 
think  it  necessary  to  revise  or  change  this  entire  constitution,  they  shall  recom- 
mend to  the  electors,  at  the  next  election  for  members  of  the  legislature,  to 
vote  for  or  against  a  convention;  and  if  it  shall  appear  that  a  majority  of  the 
electors,  voting  at  such  election,  have  voted  in  favor  of  calling  a  convention,  the 
legislature  shall,  at  its  next  session,  provide  by  law  for  calling  a  convention,  to 
be  holden  within  six  months  after  the  passage  of  such  law;  and  such  con- 
vention shall  consist  of  a  number  of  members  not  less  than  that  of  both 
branches  of  the  legislature.  The  constitution  that  may  have  been  agreed  upon 
and  adopted  by  such  convention,  shall  be  submitted  to  the  people,  at  a  special 
election,  to  be  provided  for  by  law,  for  their  ratification  or  rejection;  each  voter 
shall  express  his  opinion  by  depositing  in  the  ballot-box  a  ticket,  whereon  shall 
be  written  or  printed  the  words  "  For  the  new  Constitution,"  or  "  Against  the 
new  Constitution."  The  returns  of  such  election  shall,  in  such  manner  as  the 
convention  shall  direct,  be  certified  to  the  executive  of  the  state,  who  shall  call 
to  his  assistance  the  controller,  treasurer  and  secretary  of  state,  and  compare 
the  votes  so  certified  to  him.  If,  b}'  such  examination,  it  be  ascertained  that  a 
majority  of  the  whole  number  of  votes  cast  at  such  election,  be  in  favor  of 
such  new  constitution,  the  executive  of  this  state  shall,  by  his  proclamation, 
declare  such  new  constitution  to  be  the  constitution  of  the  State  of  California. 
[Amendmeiif ,  proposed  1855;  ratified  Wi  November,  1850.^"^ 


ARTICLE  XI. 

PROMISCUOUS   PROVISIONS. 

xlviii.  Seat  of  government. 

Sectiox  1.  The  first  session  of  the  legislature  shall  be  held  at  the  Pueblo  de 
San  Jose;  which  place  shall  be  the  permanent  seat  of  government,  until 
removed  by  law:  provided,  however,  that  two  thirds  of  all  the  members 
elected  to  each  house  of  the  legislature  shall  concur  in  the  passage  of  such 
law.'"' 

Duelling. 

Sec.  2.  Any  citizen  of  this  state  who  shall,  afttr  the  adoption  of  this  consti- 
tution, fight  a  duel  with  deadly  weapons,  or  send  or  accept  a  challenge  to  fight 
a  duel  with  deadly  weapons,  either  -\Wthin  this  state  or  out  of  it;  or  who  shall 
act  as  second,  or  knowingly  aid  or  assist  in  any  manner  those  thus  offending, 
shall  not  be  allowed  to  hold  any  office  of  profit,  or  to  enjoy  the  light  of  suffrage 
nuder  this  constitution. 

Official  oath. 

Sec.  3.  Members  of  the  legislature,  and  all  officers,  executive  and  judicial, 
except  such  inferior  officers  as  may  be  by  law  exempted,  shall,  before  they  enter 
on  the  duties  of  their  respective  offices,  take  and  subscribe  the  following  oath 
or  affirmation : 

"I  do  solemnly  swear  (or  affirm,  as  the  case  may  be)  that  I  will  support  the 
constitution  of  the  United  States,  and  the  constitution  of  the  State  of  California, 

(a)  Original  section;  within  six  uiouths  after  thp  passage  of  snch  \av>;  and 

Sec.  2.  And  if,  at  any  time,  two  thirds  of  the  senate  such  convention  shall  consist  of  a  number  of  mem- 

and  assembly  shall  think   it  necessary  to  revise  or  bers  not  less  than  that  of  both  branches  of  the  legisla- 

change  this  entire  constitution,  they  shall  recommend  ture. 

to  the  electors,  at  the  next  election  for  members  of  the  {!>)  After  the  first  removal,  a  majority  of  the  lefisla- 

legislature,  to  vote  for  or  against  the  convention;  and  ture  might  at  any  time  remove  the  capital;    couse- 

if  it  shall  appear  that  a  majority  of  the  electors  wting  quently  the  act  of  Tebriiary  i,  1851,  removing  it  to 

at  such  election  have  voted  in  favor  of  calling  a  con-  Vallejo,   was    constitutional.     Vermwle   vs.  Bigler,   5 

veution,  the  legislature  shall,  at  its  next  session,  pro-  Cal.  23. 
vide  by  law  for  calling  a   convention,  to  be   holden 

61 


slviii-1       CONSTITUTION  OF  THE  STATE  OF  CALIFOENIA. 

and  that  I  will  faithfully  discharge  the  duties  of  the  office  of ,  according 

to  the  best  of  my  ability." 

And  no  other  oath,  declaration,  or  test,  shall  be  required  as  qualification  for 
any  office  or  public  trust/ "^ 

County  and  (oini  government. 

Sec.  4.  The  legislature  shall  establish  a  system  of  county  and  town  govern- 
ments, which  shall  be  as  nearly  uniform  as  practicable  throughout  the  State.^"' 

xlix.   Counhj  sitpcrvimm. 

Sec.  5.  The  legislature  shall  have  power  to  provide  for  the  election  of  a  board 
of  supervisors  in  each  county;  and  these  supervisors  shall  jointly  and  individ- 
ually perform  such  duties  as  may  be  prescribed  b}'  law.'"^^ 

New  offices  and  officers. 

Sec.  6.  All  officers  whose  election  or  appointment  is  not  provided  for  by  this 
constitution,  and  all  officers  whose  offices  ma}'  hereafter  be  created  by  law, 
shall  be  elected  by  the  people,  or  appointed  as  the  legislature  may  direct,^''' 

Terms  of  office. 

Sec.  7,  When  the  duration  of  any  office  is  not  provided  for  by  this  constitu- 
tion, it  may  be  declared  by  law,  and  if  not  so  declared,  such  office  shall  be 
held  dui-ing  the  pleasure  of  the  authority  making  the  appointment;  nor  shall 
the  duration  of  any  office,  not  fixed  by  this  constitution,  ever  exceed  four 
ycars.*^^ 

Fiscal  xjear. 

Sec.  8.  The  fiscal  year  shall  commence  on  the  first  day  of  July. 

Support  of  covnty  and  inferior  officers. 

Sec.  9.  Each  county,  town,  city,  and  incorporated  village,  shall  make  pro- 
vision for  the  support  of  its  own  officers,  subject  to  such  restrictions  and 
regulations  as  the  legislature  may  prescribe. 

1.   Credit  of  slate. 

Sec.  10.  The  credit  of  the  state  shall  not,  in  any  manner,  be  given  or  loaned 
to  or  in  aid  of  any  individual,  association,  or  corporation;  nor  shall  the  state 
directly  or  indirectly  become  a  stockholder  in  an}'  association  or  corj)oration.^'^ 

Suits  against  state. 

Sec.  11.  Suits  may  be  brought  against  the  state  in  such  a  manner,  in  such 
courts,  as  shall  be  directed  by  law. 

{n)  An  attornoy  at  law  is  not  a  person  hokling  an  (c)  The  povernor  cannot  remove  from  office  a  notary 

"  office  of  pnldic  trust,"  and  may  be  required  to  file  au  public  duly  appointed  before  his  full  term  of  office  lias 

affidavit  of  allegiance  aB  prescribed  by  tbe  act  of  April  expired.   Finlny  vs.  .Tewett.  6  Cal.  21)1. 

25,  1863,  as  a  condition  to  practicing  before  the  courts.  Tliis  provision  must  be  construed  to  deny  tlie  right  of 

Cohen  vs.  Wright.  22  Cal.  2!)U.  removal  in  those  cases  where  the  t(  nurc  is  di  liincl.    Id. 

The  terms  "office"  and  "public  trust"  have  rein-  A  law  which  provides  that  au  officer  may  In  riinoved 

tion  only  to  those  p'-rsons  and  duties  that  are  of  a  pub-  in  a  certain  way  or  for  a  certain  cause,  docs  not  restrain 

lie  nature  and  do  not  apply  to  the  case  of  an  attorney  or  limit  the  power  of  removal  to  the  caiise  or  manner 

at  law.    Ex  ijarte  Yale.  24  Cal.  2-11.  indicated.     The  only  way  in  which  this  power  of  re- 

(fc)  This  provision  is  to  be  cojisidered  directory,  and  moval  can  be  limited  is  by  first  fixing  the  duration  or 

the  authority  to  deternune  what  measure  of  uniform-  term  of  office,  and  then  providing  the  mode,  if  deemed 

ity  is  practicable  must  be  left  to  the  legislature.   Pec-  necessary,  by  which  the  officer  maybe  removed  during 

pie  vs.  Lake  County,  3:i  Cal.  487.  the  terin.   People  vs.  Hill.  7  Cal.  97. 

ic,  This  section  must  be  regarded  as  a  limitation  on  This  clause  does  not  mean  that  an  office  created  by 

the  Third  Article  of  the  constituti(m.    From  the  neces-  the  legislature  shall  cease  to  exist  after  four  years:  but 

Blty  o{  the  case.  super\'isors  exercise  judicial,  legisla-  that  tlic  term,  fixed  by  the  constit\itiiig  autliority  and 

tive  and  executive  powers  in  matters  relating  to  the  for  wliich  au  iiuumbcut  holds  l)y  election  or  iiiipoiut- 

police  and  fiscal  regulations  of  cojiuties.    People  vs.  incut,  sluill  not  exiend  beyond  that  limit.   Pcoi>le  vs. 

El  Dorado  County,  8  Cal.  ns.  Strattou.  2H  Cul.  :W2. 

i'l)  The  constitution  does  not  prohibit  the  legisla-  The  ((imiuissiouiTS  of  the  funded  debt  of  the  city  of 

ture  from  conferring  on  a  voluntary  association  of  i)er-  San  Krainisco  were  not  officers  within  the  meaning  of 

Bons,  who  are  not  citizens,  such  as  the  board  of  fire  tliis  section  as  th(ir  term  was  not  limited  to  four  years, 

underwriters  of  San  Francisco,  the  power  of  electing  People  vs.  ;\Iiddlctoii.  28  Cal.  OBH. 

a  jierson  to  fill  an  fiffice  created  by  the  legislature.    In  (/)   Tlie  clause  prohitiitiiig  tlie  states  from  giving  or 

re  P.ulger.  i'>  Cul.  hKi.  loaning  Its  credit  to  or  in  aid  of  a  cori)oration  does  not 

When  the  constitution  declares  an  office  to  be  elect-  prohibit  it  from  appropriating  its  funds  in  time  of  war 

ive,  it  cannot  be  filled  in  any  other  mode:  but  when  to  aid  a  corporation  in  the  construction  of  a  railroad  to 

the  office  has  been  filled  by  election,  the   legislature  be  us6d  by  the  state  for  military  purijoues.   People  vs. 

may  extend  the  term  of  the  incurubent,  i^rovided  the  Pacheco,  27  Cal.  175. 
■whole  term  does  not  exceed  the  constitutional  limit. 
Christy  vs.  Supervisors  of  Sacramento  County,  39  Cal  3. 

G2 


CONSTITUTION  OF  THE  STATE  OF  CALIFORNIA. 


1 


Alarriages. 

Sec.  12.  No  contract  of  marriage,  if  otherwise  duly  made,  shall  be  invalidated 
for  want  of  conformity  to  the  requirements  of  any  religious  sect. 

Taxation. 

Sec.  13.  Taxation  shall  he  equal  and  unifonn  throughout  the  state.  All 
property  in  this  state  shall  be  taxed  in  proportion  to  its  value,  to  be  ascertained 
as  dii-ected  by  law;  but  assessors  and  collectors  of  town,  county,  and  state 
taxes,  shall  be  elected  by  the  qualified  electors  of  the  district,  county,  or  town, 
in  which  the  propeiiy  taxed  for  state,  county,  or  town  purposes  is  situated.^" 

Separate  property. 

Sec.  14.  All  property,  both  real  and  personal,  of  the  wife,  owned  or  claimed 
by  her  before  marriage,  and  that  acquired  afterwards  by  gift,  devise,  or  descent, 
shall  be  her  separate  proj)ei-ty;  and  laws  shall  be  i)assed  more  clearly  defining 
the  rights  of  the  wife,  in  relation  as  well  to  her  separate  property,  as  to  that 


\ 


(a)  This  section  applies  only  to  direct  taxation  vipon 
property,  and  does  not  prohibit  the  legislature  from 
enacting  license  laws.  It  may  require  the  payment  liy 
foreigners  of  a  license  fee  for  the  x'rivilege  of  working 
the  gold  mines  in  the  state.  People  vs.  Naglee,  1  Cal. 
232. 

The  constitution  provides  that  all  property  shall  be 
taxed;  but  the  quo  modo  is  a  matter  of  legislative 
control,  and  the  statute  must  be  steadily  followed. 
De  Witt  vs.  Hays,  2  Cal.  463. 

It  is  not  \vithin  the  power  of  the  legislature  to  exempt 
any  species  of  property,  however  owned,  from  taxji- 
tion.  That  a  steamboat  is  taxed  in  New  York  is  no 
ground  why  it  should  not  be  taxed  in  California,  when 
within  its  limits.   Minturn  vs.  Hays,  2  Cal.  1590. 

The  first  clause  of  this  section  does  not  oi)erate  as  a 
limitation  on  the  taxing  power  of  the  legislature,  and 
apply  ti)  every  species  of  taxation,  but  is  to  l)e  taken 
as  applying  only  to  direct  taxation  on  property  as  such. 
It  does  ncit  require  that  all  should  be  taxed  alike.  The 
power  of  the  legislature  to  tax  trades,  professions  and 
occupations,  is  a  matter  completely  within  its  control 
and  rests  in  its  sound  discretion.  People  vs.  Coleman, 
4  Cal.  4(1. 

The  interest  of  the  occupant  of  a  mining  claim  is 
property,  and  it  is. within  the  power  of  the  legislature, 
under  the  constitution,  to  tax  such  property.  State  vs. 
Moore.  V>  Cal.  56. 

This  section  applies  only  to  that  charge  or  imposi- 
tion upon  projjerty  which  it  is  necessary  to  levy  to 
raise  funds  to  defray  the  expenses  of  the  government 
of  the  state  or  of  some  county  or  town.  It  has  no  ref- 
erence to  special  assessments  for  local  improvements. 
For  the  expenses  of  such  imijrovements  it  is  comije- 
tent  for  the  legislature  to  provide,  either  by  general 
taxation  upon  the  property  of  all  the  inhabitants  of  the 
count}-  or  town  in  which  they  are  made,  or  upon  proi)- 
erty  adjacent  thereto  and  specially  benefited  thereby. 
Burnett  vs.  Sacramento,  12  Cal.  70. 

The  legislature  can  impose  a  general  tax  ui)on  all 
the  property  of  the  state,  or  a  local  tax  upon  the  prop- 
ertj'  of  particular  political  subdivisions,  as  counties, 
cities  and  towns.  The  cases  in  which  its  power  shall 
be  exercised  and  the  extent  to  which  the  taxation  in  a 
partii  iilar  instance  shall  be  carried,  are  matters  exclu- 
sively within  its  own  judgment,  subject  to  tlie  (qualifi- 
cations of  equality  and  uniformity  in  the  assessment. 
And,  exiep:  as  especially  restricted,  its  power  of  ap- 
propriation of  the  moneys  raised  is  coextensive  with 
its  power  of  taxation.   Blauding  vs.  Biirr,  13  Cal.  343. 

Assessors  and  tax  collectors  are  constitutional  officers, 
but  it  is  not  necessary  that  every  portion  of  the  rev- 
enue iiass  through  their  hands.  The  legislature  may 
authorize  the  tax-payer  to  pay  his  taxes  directly  into 
the  treasury.  People  vs.  Squires,  14  Cal.  12. 

The  foreign  miners'  license,  though  in  some  sense  a 
tax,  yet,  probably,  it  is  not  so  in  the  sense  involved  in 
the  U'Tcssnry  duties  of  a  tax  collector.   Id. 

A  sheriff,  being  ex  officio  tax  collector  of  foreign 
miners'  licenses,  may  be  deprived  of  the  office  of  tax- 
collector  by  the  legislature,  before  the  expiration  of 
his  term.   Id. 

The  act  of  May  3.  18-52,  providing  for  the  appoint- 
ment of  a  ganger  for  the  port  of  San  Francisco,  is  con- 
Btitutional.    It  does  not  violate  the  provision  that  tax- 


ation shall  be  equal  and  uniform,  because  the  per 
centage  allowed  the  ganger  is  not  a  tax  within  the 
meaning  of  the  constitution.  Addison  vs.  Saulnier,  19 
Cal.  82. 

The  iirovision  that  taxation  shall  be  equal  and  uni- 
form is  not  vi'dated  by  the  revenue  act  of  April  29, 
1857,  exempting  church  and  school  lands  and  lands  of 
the  United  States  from  taxation.  High  vs.  Shoemaker, 
22  Cal.  363. 

The  words  "  taxation"  and  "taxes,"  as  used  in  this 
section,  do  not  apply  to  assessments  levied  upon  city 
lots  to  pay  for  street  improvements.  Emery  vs.  S.  F. 
Gas  Co.,  28  Cal.  345. 

The  provisions  of  this  section  are  limitations  and 
not  grants  of  power,  but  as  limitations  are,  according 
to  their  terms,  mandatory  upon  the  legislature.  People 
vs.  McCreery,  34  Cal.  432. 

The  words  "  all  property  in  this  state "  mean  all 
property  which  is  not  public,  and  the  legislature  has 
no  power  to  exeiniJt  any  private  property  from  taxa- 
ation.   People  vs.  McCreery,  34  Cal.  432. 

An  act  providing  for  the  assessment  of  railroad  or 
other  property  by  assessors  other  than  those  in  whose 
district  the  property  is  situated  is  unconstitutional. 
People  vs.  Placerville  &  S.  V.  K.  K.  Co.,  34  Cal.  656. 

The  legislature  may  by  law  devolve  the  office  and 
duties  of  tax  collector  upcm  the  incumbent  of  any  other 
elective  office;  but  such  law  must  precede  the  election 
of  such  officer,  and  his  election  must  be  by  the  quali- 
fied electors  of  tlie  tax  collector's  district.  People  vs. 
Kelsey,  34  Cal.  470. 

A  statute  exempting  private  property  from  taxation 
and  all  parts  thereof  relating  to  such  exemption  are 
unconstituticmal  and  must  be  disregarded.  People  vs. 
Gerke,  35  Cal.  677. 

An  act  having  the  effect  of  exempting  the  property 
of  a  railroad  from  the  payment  of  a  school  tax  regu- 
larly levied  is  unconstitutional.  Crosby  vs.  Lyon,  32 
Cal.  242. 

An  act  taxing  the  property  of  a  district  for  a  local 
improvement,  which  exempts  personal  property  from 
its  operation  is  unconstitutional  because  not  levied  on 
all  the  property  in  the  district.  People  vs.  Whyler,  41 
Cal.  351. 

The  word  "  property"  as  here  used,  includes  not  only 
visible  and  tangibh-  property  but  also  choses  in  action 
such  as  solvent  debts  secured  by  mortgage.  People  vs. 
Eddv,  43  Cal.  331;  Savings  and  Loan  Society  vs.  Austin, 
46  Cal.  415. 

Where  an  act  authorizes  a  tax  for  road  purposes  upon 
property  along  a  road  in  a  portion  of  a  county  and  pro- 
viding "tliat  it  should  be  assessed  by  the  <ounty  as- 
sessor, and  it  was  so  assessed :  Held,  that  the  assessment 
was  void  because  not  made  by  an  asses.sor  elected  by 
the  electors  of  the  district.  Williams  vs.  Corcoran,  46 
Cal.  553. 

The  act  creating  a  state  board  of  equalization,  which 
gave  the  board  power  to  fix  the  rate  of  taxation  for 
state  purposes  was  not  unconstitutional.  Savings  and 
Loan  Society  vs.  Austin,  46  Cal.  415;  oven-uled  in 
Houghton  vs.  Austin,  47  Cal.  640. 

The  legislature  cannot  authorize  a  board  of  super- 
visors to  remit  a  tax  or  part  of  a  tax  within  a  specified 
district.  Wilson  vs.  Supervisors  of  Sutter  County,  47 
Cal.  91. 


63 


1-lii  CONSTITUTION  OF  THE  STATE  OF  CALIFOKNIA. 

held  in  commou  -with  ber  liusband.     Laws  shall  also  be  passed  providing  for 
the  reg-istratiou  of  the  wife's  separate  property/''* 

li.  Homesteads. 

Sec.  15.  The  legislature  shall  protect  by  law  from  forced  sale,  a  certain  j^or- 
tion  of  the  homestead  and  other  property  of  all  heads  of  families.^''' 

Perpeiuiiies. 

Sec.  16.  No  jierpetuities  shall  be  allowed,  except  for  eleemosynaiy  piii-poses. 

Bribei'ij. 

Sec.  17.  Every  person  shall  be  disqualified  from  holding  any  office  of  profit 
in  this  state,  who  shall  have  been  convicted  of  having  given,  or  offered  a  bribe, 
to  procure  his  election  or  appointment. 

Bight  of  suffrage. 

Sec.  18.  Laws  shall  be  made  to  exclude  from  oiBce,  serving  on  juries,  and 
from  the  right  of  sufirage,  those  who  shall  hereafter  be  con^dcted  of  bribery, 
perjury,  forgery,  or  other  high  crimes.  The  privilege  of  free  suffrage  shall  be 
supported  by  laws  regulating  elections,  and  prohibiting,  under  adequate  penal- 
ties, all  undue  influence  thereon  from  j)ower,  bribery,  tumult,  or  other  im- 
proper practice. 
Besidents  absent. 

Sec  19.  Absence  from  this  state,  on  business  of  the  state,  or  of  the  United 
States,  shall  not  affect  the  question  of  residence  of  any  person. 

Plvrality  vote. 

Sec.  20.  A  plurality  of  the  votes  given  at  an  election  shall  constitute  a  choice, 
where  not  otherwise  directed  in  this  constitution. 

Publication  of  laws,  etc. 

Sec  21-  All  laws,  decrees,  regulations,  and  provisions,  which  from  their 
nature  require  publication,  shall  be  published  in  English  and  Spanish. 

ARTICLE  XII. 

BOUNDARY. 

lii.  State  boundary. 

The  boundary  of  the  State  of  California  shall  be  as  follows: 
Commencing  at  the  point  of  intersection  of  the  42d  degree  of  north  latitude 
"u-ith  the  120th  degree  of  longitude  west  from  Greenwich,  and  running  south 
on  the  line  of  the  said  120th  degree  of  west  longitude  until  it  intersects  the  39tli 
degree  of  north  latitude;  thence  running  in  a  straight  line  in  a  southeasterly 
direction  to  the  river  Colorado,  at  a  point  where  it  intersects  the  35th  degree 
of  north  latitude;  thence  Mown  the  middle  of  the  channel  of  said  river  to  the 
boundaiy-line  between  the  United  States  and  Mexico,  as  established  by  the 
treaty  of  May  30,  1848;  thence  i-unniug  west  and  along  said  boundary-line  to 

[a)  This  ficction  Is  t>ikpn  from  the  constitution  of  The  ri;,'litK  of  ninrried  women  to  their  separate  proij- 

TexaB.     It  i-reateB  a  caiiacitj-  in  the  wife  to  hold  Kei^a-  erty  in  California  do  not  depend  alone  upon  the  eoni- 

rate  i)roperty,  and  her  title  depends  upon  the  mode  of  mou  law  or  doi-trlnes  of  courts  of  equity,  but  mainly 

acquisition  and  vests  before  the  inventorj' can  be  filed,  upcm  the  constitution  and  statutes.   Macluy  vs.  Love, 

Selover  vs.  American  Russian  Commercial  Company,  2.5  Cal.  367. 

7  Cal.  '2GC,.  This  clause  does  not  refer  to  the  mode  and  form  in 

From  the  position  that  the  capacity  of  the  wife  as  to  which  a  wife  shall  convey  her  separate  property,  and 

her  separate  i)roperty  Is  equal  to  that  of  the  husband  therefore  a  statute  requiring  a  deed  conveying  such 

as  to  his  separate  property,  urave  doubts  exist  as  to  the  separate  property,  to  be  signed  by  the  husband  as  well 

validity  of  some  of  the  provisions  of  the  statute  relat-  as  the  wife,  is  not  unconstitutional.   Dow  vs.  Gould  & 

int»  to  husband  and  wife.   Id.  Ourry  S.  M.  Co.,  ai  Cal.  (!;)(). 

The  term  "  separate  ])roperty"  is  used  in  its  common  (/>)    The  constitution  Is  inoiierative  in   itself,  and 

law  sense,  and  means  an  estate,  both  In  its  use  and  in  looks  to  lef,'islation  to  determine  how  far  and  in  what 

it.s  title,  for  the  exilusive  benefit  of  the  wife.    Neither  manner  the  homestead  should  be  protected  from  forced 

the  husband  nor  his  creditor  can  claim  the  proceeds  or  sale.   Gary  vs.  Tice,  C  Cal.  625. 
fruits  of  tlie  separate  estate  of  the  wife.    A  law  giving 
them  such  fruits  is  uncoustitutioual.  George  vs.  Ran- 
Bom,  15  Cal.  322. 

G4 


CONSTITUTION  OF  THE  STATE  OF  CALIFORNIA.         lii-liv 

the  Pacific  Ocean,  and  extending"  therein  three  Kughsli  inili's;  tlience  running 
in  a  northwesterly  direction  and  following  the  direction  of  the  Pacific  coast  to 
the  42d  degree  of  north  latitude;  thence  on  the  line  of  Raid  42d  degree  of  north 
latitude  to  the  place  of  beginning.  Also  all  the  islands,  harbors,  and  bays, 
along  and  adjacent  to  the  Pacific  coast. 

SCHEDULE. 

liii.  Ilexican  laius  in  force. 

Section  1.  All  rights,  prosecutions,  claims  and  contracts,  as  well  of  individ- 
uals as  of  bodies  corporate,  and  all  laws  in  force  at  the  time  of  the  adoption  of 
this  constitution,  and  not  inconsistent  therewith,  until  altered  or  repealed  by 
the  legislature,  shall  continue  as  if  the  same  had  not  been  adopted. 

Bemoval  of  causes. 

Sec.  2.  The  legislature  shall  provide  for  the  removal  of  all  causes  which  may 
be  pending  when  this  constitution  goes  into  effect,  to  courts  created  by  the 
same. 
Change  of  government. 

Sec.  3.  In  order  that  no  inconvenience  may  result  to  the  pul;lic  service,  from 
the  taking  effect  of  this  constitution,  no  officer  shall  be  superseded  thereby,  nor 
the  laws  relative  to  the  duties  of  the  several  officers  be  changed,  until  the 
entering-  into  office  of  the  new  officers,  to  be  appointed  under  this  constitution. 

Eesidence, 

Sec.  4.  The  j^rovisions  of  this  constitution  concerning  the  terra  of  residence 
necessary  to  enable  persons  to  hold  certain  offices  therein  mentioned,  shall  not 
be  held  to  apply  to  officers  chosen  by  the  people  at  the  first  election,  or  by  the 
legislatui'e  at  its  first  session. 

liv.    looters. 

Sec.  5.  Every  citizen  of  California,  declared  a  legal  voter  by  this  constitution, 
and  every  citizen  of  the  United  States  a  resident  of  this  state  on  tlie  day  of 
election,  shall  be  entitled  to  vote  at  the  first  general  election  iinder  this  consti- 
tution, and  on  the  question  of  the  adoption  thereof. 

Constitution  to  be  submitted  to  j)coi>le. 

Sec.  6.  This  constitution  shall  be  submitted  to  the  people  for  their  ratifica- 
tion or  rejection,  at  the  general  election  to  be  held  on  Tuesday,  the  thirteenth 
day  of  November  next.  The  executive  of  the  existing  government  of  California 
is  hereby  requested  to  issue  a  proclamation  to  the  people,  dii-ecting  the  prefects 
of  the  several  districts,  or  in  case  of  vacancy,  the  sub-prefects,  or  senior  judge 
of  first  instance,  to  cause  such  election  to  be  held,  the  day  aforesaid,  in  the 
respective  districts.  The  election  shqjl  be  conducted  in  the  manner  which  was 
prescribed  for  the  election  of  delegates  to  this  convention,  excejDt  that  the 
prefect,  sub-prefect,  or  senior  judge  of  first  instance,  ordering  such  election  in 
each  district,  shall  have  power  to  designate  any  additional  number  of  places 
for  opening  the  polls,  and  that,  in  every  place  of  holding  the  election,  a  regular 
poll-list  shall  be  kept  by  the  judges  and  inspectors  of  election.  It  shall  also 
be  the  duty  of  these  judges  and  insjoectors  of  election,  on  the  day  aforesaid,  to 
receive  the  votes  of  the  electors  qualified  to  vote  at  such  election.  Each  voter 
shall  express  his  opinion,  by  depositing  in  the  ballot-box  a  ticket,  Avhcreon  shall 
be  written,  or  printed,  "For  the  Constitution,"  or  "Against  the  Constitution," 
or  some  such  words  as  will  distinctly  convey  the  intention  of  the  voter.  These 
judges  and  inspectors  shall  also  receive  the  votes  for  the  several  officers  to  be 
voted  for  at  the  said  election  as  herein  provided.  At  the  close  of  the  election, 
the  judges  and  inspectors  shall  carefully  count  each  ballot,  and  forthwith  make 
5  Co 


liv-lv  CONSTITUTION  OF  THE  STATE  OF  CALIFORNIA. 

duplicate  returns  thereof  to  the  prefect,  sub-prefect,  or  senior  judge  of  first 
instance,  as  the  case  may  be,  of  their  respective  districts;  and  said  prefect,  sub- 
prefect,  or  senior  judg'e  of  first  instance,  shall  transmit  one  of  the  same,  by  the 
most  safe  and  rapid  conveyance,  to  the  secretary  of  state.  Upon  the  receipt  of 
said  returns,  or  on  the  tenth  day  of  December  next,  if  the  returns  be  not  sooner 
received,  it  shall  be  the  duty  of  a  board  of  canvassers,  to  consist  of  the  secretary 
of  state,  one  of  the  judges  of  the  superior  court,  the  prefect,  judge  of  first 
instance,  and  an  alcalde  of  the  district  of  Monterey,  or  any  three  of  the  afore- 
mentioned officers,  in  the  presence  of  all  who  shall  choose  to  attend,  to  compare 
the  votes  given  at  said  election,  and  to  immediately  publish  an  abstract  of  the 
same  in  one  or  more  of  the  newspapers  of  California.  And  the  executive  will 
also,  immediately  after  ascertaining  that  the  constitution  has  been  ratified  by 
the  people,  make  proclamation  of  the  fact;  and  thenceforth  this  constitution 
shall  be  ordained  and  estaljlished  as  the  constitution  of  California. 
TranHmission  to  congress. 

Skc.  7.  If  this  constitution  shall  be  ratified  by  the  people  of  Cahfoniia,  the 
executive  of  the  existing  government  is  hereby  requested,  immediately  after  the 
same  shall  be  ascertained,  in  the  manner  herein  dii-ected,  to  cause  a  fair  copy 
thereof  to  be  forwarded  to  the  president  of  the  United  States,  in  order  that  he 
may  lay  it  l>ofore  the  congress  of  the  United  States. 

Election  of  officers. 

Sec.  8.  At  the  general  election  aforesaid,  viz.,  the  thuieenth  day  of  Novem- 
ber next,  there  shall  be  elected  a  governor,  lieutenant-governor,  members  of  the 
legislature,  and  also  two  members  of  congress. 
Meeting  of  legislature. 

Sec.  [}.  If  this  constitution  shall  be  ratified  by  the  people  of  California,  the 
legislature  shall  assemble  at  the  seat  of  government  on  the  fifteenth  day  of  De- 
cember next;  and  in  order  to  complete  the  organization  of  that  body,  the  senate 
shall  elect  a  president  pro  tempore,  until  the  lieutenant-governor  shall  be  in- 
stalled into  office. 
Iv.  Eej)()rt  of  canvassers. 

Sec.  10.  On  the  organization  of  the  legislature,  it  shall  be  the  duty  of  the 
secretary  of  state  to  lay  before  each  house  a  copy  of  the  abstract  made  by  the 
board  of  canvassers,  and,  if  called  for,  the  original  returns  of  election,  in  order 
that  each  house  may  judge  of  the  correctness  of  the  report  of  said  board  of  can- 
vassers. 
Legislative  elections — United  States  senators. 

Sec.  11.  The  legislature,  at  its  first  session,  shall  elect  such  officers  as  may  be 
ordered  by  this  constitution,  to  be  elected  by  that  body,  and  within  four  days 
after  its  organization,  proceed  to  elect  two  senators  to  the  congress  of  the  United 
States.  But  no  law  passed  by  this  legislature  shall  take  effect  until  signed  by 
the  governor  after  his  installation  into  office. 
Application  for  admission  into  the  Union. 

Sec.  12.  The  senators  and  representatives  to  the  congress  of  the  United  States 
elected  by  the  legislature  and  people  of  California,  as  herein  directed,  shall  be 
furnished  with  certified  copies  of  this  constitution,  when  ratified,  which  they 
shall  lay  before  the  congress  of  the  United  States,  requesting,  in  the  name  of 
the  people  of  CaUfornia,  the  admission  of  the  State  of  California  into  the  Amer- 
ican Union. 
Installation  of  officers. 

Sec  13.  All  officers  of  this  state,  other  than  members  of  the  legislature,  shall 
be  installed  into  office  on  the  fifteenth  day  of  December  next,  or  as  soon  there- 
after as  practicable. 

66 


CONSTITUTION  OF  THE  STATE  OF  CALIFORNIA. 


Iv 


Appointment  of  legislators. 

Sec.  14.  Until  the  legislature  shall  divide  the  state  into  counties  and  senatorial 
and  assembly  districts,  as  directed  by  this  constitution,  the  following  shall  be 
the  apportionment  of  the  two  houses  of  the  legislature,  viz. :  The  districts  of 
San  Diego  and  Los  Angeles,  shall  jointly  elect  two  senators;  the  districts  of 
Santa  Barbara  and  San  Luis  Obispo,  shall  jointly  elect  one  senator;  the  dis- 
trict of  Monterey,  one  senator;  the  district  of  San  Jose,  one  senator;  the 
district  of  San  Francisco,  two  senators;  the  district  of  Sonoma,  one  senator; 
the  district  of  Sacramento,  four  senators;  and  the  district  of  San  Joaquin,  foui* 
senators.  And  the  district  of  San  Diego  shall  elect  one  member  of  assembly; 
the  district  of  Los  Angeles,  two  members  of  assembly;  the  district  of  Santa 
Barbara,  two  members  of  assembly;  the  district  of  San  Luis  Obispo,  one  mem- 
ber of  assembly;  the  district  of  Monterey,  two  members  of  assembly;  the  dis- 
trict of  San  Jose,  three  members  of  assembly;  the  district  of  San  Francisco, 
five  members  of  assembly;  the  district  of  Sonoma,  two  members  of  assembly; 
the  district  of  Sacramento,  nine  members  of  assembly;  and  the  district  of  tian 
Joaquin,  nine  members  of  assembly. 

Salaries, 

Sec,  15.  Until  the  legislature  shall  otherwise  direct,  in  accordance  with  the 
provisions  of  this  constitution,  the  salary  of  the  governor  shall  be  ten  thousand 
dollars  per  annum;  and  the  salary  of  the  lieutenant-governor  shall  be  double 
the  pay  of  a  state  senator;  and  the  pay  of  members  of  the  legislature  shall  be 
sixteen  dollars  per  diem,  while  in  attendance,  and  sixteen  dollars  for  every 
twentj^  miles'  travel  by  the  usual  route  from  their  residences,  to  the  j)lace  of 
holding  the  session  of  the  legislature,  and  in  returning  therefrom.  And  the 
legislature  shall  fix  the  salaries  of  all  officers,  other  than  those  elected  by  the 
people,  at  the  first  election. 

State  expenditures. 

Sec.  16.  The  Hmitation  of  the  powers  of  the  legislature,  contained  in  Article 
Eight  of  this  constitution,  shall  not  extend  to  the  first  legislature  elected  under 
the  same,  which  is  hereby  authoiized  to  negotiate  for  such  amount  as  may  be 
necessary  to  pay  the  exjDenses  of  the  state  government. 

E.  SEMPLE, 

President  of  the  Convention,  and  Delegate  from  Benicia. 

Wm.  G.  Makcy,  Secretary. 


J.  Aram, 

C.    T.    BOTTS, 

E>  Bkown, 

J.  A.  Cakrillo, 

J.    M.    COVARRUBIAS, 

E.  O.  Crosby, 

P.  De  La  Guerra, 

L.  Dent, 

M.  DojnNGUEz, 

K.    H.    DiMMICK, 

A.  J,  Ellis, 
S.  C.  Foster, 
E.   Gilbert, 
W.  M.  GwiN, 
H.  W.  Halleck, 
JvujlN  Hanks, 


L.  W.  Hastings, 
Henry  Hill, 

J.    HoBSON, 

J.    McH.   HOLLINSWORTH, 

J.   M.  Jones, 
J.  D.  Hoppe, 

T.    O.    L.ARKIN, 

Francis  J.  Lippitt, 
B.   S.  Lippincott, 
M.  M.  McCarver, 
John  McDougal, 
B.  F.  Moore, 
Myron  Norton, 
P.  Ord, 

Miguel  Pedrorena, 
A.  M.  Pico, 
67 


R.  M.  Price, 
Hugo  Heid, 
Jacinto  Rodriguez, 
Pedro  Sansev.uxe, 
W.  E.   Shannon, 
W.   S.   Sherwood, 
J.   R.   Snyder, 
A.   Stearns, 
W.  M.   Steuart, 
J.  A.   Sutter, 
Henry  A,  Tefft, 
S.  L.  Vermeule, 
M.  G.  Vallejo, 
J.  Walker, 
O.   M.  Wozencraft. 


Ivi  ACT  OF  ADiVnSSION. 


%tt  of  ^^mi$0ion. 


An  Act  for  the  admission  of  the  State  of  California  into  the  Union. 

Approved  September  9, 1850. 

Ivi.  Admission  of  California. 

Whereas,  the  people  of  California  have  presented  a  constitution,  and  asked 
admission  into  the  Union,  which  constitution  was  submitted  to  congress  by  the 
jDresident  of  the  United  States,  by  message,  dated  February  thirteenth,  eighteen 
hundred  and  fifty,  and  which,  on  due  examination,  is  found  to  be  republican  in 
its  form  of  government : — 

Be  it  enacted  by  the  senate  and  house  of  representatives  of  the  United  States  of 
America,  in  congresi<  assembled,  That  the  State  of  California  shall  be  one,  and  is 
hereby  declared  to  be  one,  of  the  United  States  of  America,  and  admitted  into 
the  Union  on  an  equal  footing  with  the  original  states  in  all  respects  whatever. 

Bej^resentatives. 

Sec.  2,  And  be  it  further  enacted,  That,  until  the  representatives  in  congress 
shall  be  apportioned,  according  to  an  actual  enumeration  of  the  inhabitants  of 
the  United  States,  the  State  of  California  shall  be  entitled  to  two  representatives 
in  congress. 

Public  lands — Non-resident  proprietors — Navigable  tvaters. 

Sec.  3.  And  be  it  further  enacted,  That  the  said  State  of  California  is  admitted 
into  the  Union  upon  the  express  condition  that  the  people  of  said  state,  through 
their  legislature  or  otherwise,  shall  never  interfere  with  the  primary  disposal  of 
the  public  lands  within  its  limits,  and  shall  pass  no  law  and  do  no  act  Avhereby 
the  title  of  the  United  States  to,  and  right  to  dispose  of,  the  same  shall  be 
impaired  or  questioned;  and  that  they  shall  never  lay  any  tax,  or  assessment  of 
any  description  whatsoever,  upon  the  public  domain  of  the  United  States,  and 
in  no  case  shall  non-resident  proprietors,  who  are  citizens  of  the  United  States, 
be  taxed  higher  than  residents;  and  that  all  the  navigable  waters  within  the  said 
state  shall  be  common  highways,  and  forever  free,  as  well  to  the  inhabitants  of 
said  state  as  to  the  citizens  of  the  United  States,  without  any  tax,  imiiost  or 
duty  therefor:  provided,  that  nothing  herein  contained  shall  be  construed  as 
recognizing  or  rejecting  the  propositions  tendered  l)y  the  people  of  California 
as  articles  of  compact  in  the  ordinance  adopted  by  the  convention  which  fonued 
the  constitution  of  that  state.*** 

(a)  An'act  anowing  pfTRoiifi,  wlio  liavo  put  improve-  provonrnts  which  arc  a  part  of  the  realty,  because  in 

merits  on  landK  of  the  Uuitcd  Stutcs,  to  remove  them  conflict  with  the  act  ailiiiiftinR  the  state  into  the  Uuion. 

within  six  months  after  the  lands  shall  have  become  Collins  vs.  Bartlttt,  14  Cal.  371. 
private  property  is  void,  in  so  far  as  it  relates  to  im- 


C8 


Slutljcutjcatiou  of  iUiblic  ^ct0,  Mttoth^,  mh  |uDi= 
rial  ProrccDino^,  m  bttmttn  tijc  Statc*i. 

Ivii.    An  Act  to  revise  and  consolidate  the  statutes  of  the  United  States  in  force  on  the  first 
day  of  December,  Anno  Domini  one  thousand  eight  hundred  and  seventy-three. 

Approved  June  22,  1874. 

Be  it  enacted  by  the  senate  and  house  of  representatives  of  the  United  States  in 
congress  assembled: 


TITLE   XIII. 


CHAPTER  SEVENTEEN. 

EVIDENCE. 

Authentication  of  legislative  acts  and  proof  of  judicial  proceedings  of  states,  etc. 

Sec.  905.  The  acts  of  the  legislature  of  any  state  or  territoiy,  or  of  any 
country  subject  to  tlie  jurisdiction  of  tlie  United  States,  shall  be  authenticated 
by  having  the  seals  of  such  state,  territoiy,  or  country  affixed  thereto.  The 
records  and  judicial  proceedings  of  the  courts  of  any  state  or  territoiy,  or  of 
any  such  country,  shall  be  proved  or  admitted  in  any  other  court  within  the 
United  States,  by  the  attestation  of  the  clerk,  and  the  seal  of  the  court  annexed, 
if  there  be  a  seal,  together  with  a  certificate  of  the  judge,  chief  justice,  or 
presiding  magistrate,  that  the  said  attestation  is  in  due  form.  And  the  said 
records  and  judicial  proceedings,  so  authenticated,  shall  have  such  faith  and 
credit  given  to  them  in  exery  court  within  the  United  States  as  they  have  by 
law  or  usage  in  the  courts  of  the  state  from  which  they  are  taken. 

Proofs  cf  records,  etc.,  kept  in  offices  not  pertaining  to  courts. 

Sec.  90G.  All  records  and  exemplifications  of  books,  which  may  be  kept  in 
any  public  office  of  an}'  state  or  territoiy,  or  of  any  country  subject  to  the 
jurisdiction  of  the  United  States,  not  appertaining  to  a  court,  shall  be  proved 
or  admitted  in  an^^  court  or  office  in  any  other  state  or  territoiy,  or  in  any  such 
countiy,  b}'  the  attestation  of  the  keeper  of  the  said  records  or  books,  and  the 
seal  of  his  office  annexed,  if  there  be  a  seal,  together  with  a  certificate  of  the 
presiding  justice  of  the  court  of  the  county,  parish,  or  district  in  which  such 
office  may  be  kept,  or  of  the  governor,  or  secretary  of  state,  the  chancellor  or 
keeper  of  the  great  seal  of  the  state,  or  territoiy,  or  countiy,  that  the  said 
attestation  is  in  due  form,  and  by  the  proper  officers.  If  the  said  certificate  is 
given  by  the  presiding  justice  of  a  court,  it  shall  be  further  authenticated  by 

69 


Ivii  AUTHENTICATION  OF  PUBLIC  ACTS. 

the  clerk  or  protlionotary  of  the  said  court,  who  shall  certify,  under  his  hand 
and  the  seal  of  his  office,  that  the  said  presiding  justice  is  dul}'  commissioned 
and  qualified;  or,  if  given  by  such  governor,  secretarj',  chancellor,  or  keeper 
of  the  great  seal,  it  shall  be  under  the  great  seal  of  the  state,  territory,  or 
countiy  aforesaid  in  which  it  is  made.  And  the  said  records  and  exemplifica- 
tions, so  authenticated,  shall  have  such  faith  and  credit  given  to  them  in  every 
court  and  office  within  the  United  States  as  they  have  by  law  or  usage  in  the 
courts  or  offices  of  the  state,  territory,  or  countiy,  as  aforesaid,  from  which  they 
are  taken. 

Copies  of  foreign  records,  etc.,  relating  to  land  titles  in  the  United  States. 

Sec.  907.  It  shall  be  lawful  for  any  keeper  or  person  having  the  custody  of 
laws,  judgments,  orders,  decrees,  journals,  correspondence,  or  other  iiublic 
documents  of  any  foreign  government  or  its  agents,  relating  to  the  title  to  lands 
claimed  by  or  under  the  United  States,  on  the  ajDplication  of  the  head  of  one  of 
the  departments,  the  solicitor  of  the  treasury,  or  the  commissioner  of  the  gen- 
eral land  office,  to  authenticate  copies  thereof  under  his  hand  and  seal,  and  to 
certify  them  to  be  correct  and  true  copies  of  such  laws,  judgments,  orders, 
decrees,  journals,  correspondence,  or  other  public  documents,  respectively;  and 
when  such  copies  are  certified  by  an  American  minister  or  consul,  under  his 
hand  and  seal  of  office,  to  be  true  coi^ies  of  the  originals,  they  shall  be  sealed 
up  by  him  and  returned  to  the  solicitor  of  the  treasury,  who  shall  file  them  in  his 
office,  and  cause  them  to  be  recorded  in  a  book  to  be  kept  for  that  purpose.  A 
copy  of  any  such  law,  judgment,  order,  decree,  journal,  correspondence,  or 
other  public  document,  so  filed,  or  of  the  same  so  recorded  in  said  book,  may 
be  read  in  evidence  in  any  court,  where  the  title  to  land  claimed  by  or  under 
the  United  States  may  come  into  question,  equally  with  the  originals. 
Little  S  Brown's  edition  of  the  statutes  to  be  evidence. 

Sec.  908.  The  edition  of  the  laws  and  treaties  of  the  United  States  published 
by  Little  &  Brown,  shall  be  competent  evidence  of  the  several  public  and  jjrivate 
acts  of  congress,  and  of  the  several  treaties  therein  contained,  in  all  the  courts 
of  law  and  equity  and  of  maritime  jurisdiction,  and  in  all  the  tribunals  and 
public  offices  of  the  United  States,  and  of  the  several  states,  without  any 
further  proof  or  authentication  thereof. 


70 


Ilaturalimtioii  i'am^. 


Iviii.   An  Act  to  revise  and  consolidnte  the  statutes  of  the  United  Stntes  in  force  on  tlie  first 

day  of  December,  Anno  Domini  one  thousand  eight  hundred  and  seventy-three . 

Approved  June  22,  1874. 

Be  it  enacted  by  the  senate  and  house  of  representatives  of  the  United  States  in 
congress  assembled: 


TITLE  XXX. 

^^atuvalijation. 

Aliens,  how  naturalized. 

Sec.  2165.  An  alien  may  be  admitted  to  become  a  citizen  of  the  United  States 
in  the  following  manner  and  not  otherwise: 

First.  He  shall  declare  on  oath,  before  a  circuit  or  district  court  of  the  United 
States,  or  a  district  or  supreme  court  of  the  territories,  or  a  court  of  record  of 
any  of  the  states  having  common  law  jurisdiction  and  a  seal  and  clerk,  two 
years,  at  least,  prior  to  his  admission,  that  it  is  bona  fide  his  intention  to 
become  a  citizen  of  the  United  States,  and  to  renounce  forever  all  allegiance  and 
fidelity  to  anj' foreign  prince,  potentate,  state,  or  sovereignty,  and,  particularly, 
by  name,  to  the  prince,  potentate,  state,  or  sovereignty  of  which  the  alien  may 
be  at  the  time  a  citizen  or  subject. 

Second.  He  shall,  at  the  time  of  his  application  to  be  admitted,  declare,  on 
oath,  before  some  one  of  the  courts  above  specified,  that  he  will  support  the 
constitution  of  the  United  States,  and  that  he  absolutely  and  entirely  renounces 
and  abjures  all  allegiance  and  fidelity  to  every  foreign  jDrince,  potentate,  state, 
or  sovereignty;  and,  jDarticularly,  by  name,  to  the  i^rince,  j^otentate,  state,  or 
sovereignty  of  which  he  was  before  a  citizen  or  subject;  which  proceedings  shall 
be  recorded  by  the  clerk  of  the  court. 

Third.  It  shall  be  made  to  ai3j)ear  to  the  satisfaction  of  the  court  admitting 
such  alien  that  he  has  resided  within  the  United  States  five  years  at  least,  and 
within  the  state  or  territory  whei'e  such  court  is  at  the  time  held,  one  year  at 
least;  and  that  during  that  time  he  has  behaved  as  a  man  of  a  good  moral 
character,  attached  to  the  principles  of  the  constitution  of  the  United  States, 
and  well  disposed  to  the  good  order  and  happiness  of  the  same;  but  the  oath 
of  the  aj^plicant  shall  in  no  case  be  allowed  to  prove  his  residence. 

Fourth.  In  case  the  alien  applying  to  be  admitted  to  citizenship  has  borne 
any  hereditary  title,  or  been  of  any  of  the  orders  of  nobility  in  the  kingdom  or 
state  from  which  he  came,  he  shall,  in  addition  to  the  above  requisites,  make  an 
exjiress  renunciation  of  his  title  or  order  of  nobility  in  the  court  to  which  his 
application  is  made,  and  his  renunciation  shall  be  recorded  in  the  court. 

Fifth.  Any  alien  who  was  residing  within  the  limits  and  under  the  jurisdic- 
tion of  the  United  States  before  the  twenty-ninth  day  of  January,  one  thou- 

71 


hiii  NATUEALIZATION  LAWS. 

sand  seven  liuudred  and  ninet3--five,  may  be  admitted  to  become  a  citizen,  on 
due  proof  made  to  some  one  of  the  courts  above  si^ecified,  that  he  lias  resided 
two  years,  at  least,  witliiu  the  jurisdiction  of  the  United  States,  and  one  year, 
at  least,  immediately  preceding  his  application,  within  the  state  or  tenitory 
■where  such  court  is  at  the  time  held;  and  on  his  declaring  on  oath  that  he  will 
support  the  constitution  of  the  United  States,  and  that  he  absolutely  and  en- 
tii'ely  renounces  and  abjures  all  allegiance  and  fidelity  to  any  foreign  prince, 
potentate,  state,  or  sovereignty,  and,  particularly,  by  name,  to  the  prince,  po- 
tentate, state,  or  sovereignty  whereof  he  was  before  a  citizen  or  subject;  and, 
also,  on  its  appearing  to  the  satisfaction  of  the  court,  that  during  such  term  of 
two  years  he  has  behaved  as  a  man  of  good  moral  character,  attached  to  the 
constitution  of  the  United  States,  and  well  disposed  to  the  good  order  and  hap- 
l^iness  of  the  same;  and  where  the  alien,  applying  for  admission  to  citizenship, 
has  borne  any  hereditary  title,  or  been  of  any  of  the  orders  of  nobility  in  the 
kingdom  or  state  from  which  he  came,  on  his,  moreover,  making  in  the  court 
an  express  renunciation  of  his  title  or  order  of  nobility.  All  of  the  proceedings, 
required  in  this  condition  to  be  pei'foi'med  in  the  court,  shall  be  recorded  b}'  the 
clerk  thereof. 

Sixth.  Any  alien  who  was  residing  within  the  limits  and  under  the  jiuisdic- 
tion  of  the  United  States,  between  the  eighteenth  day  of  June,  one  thousand 
seven  hundred  and  ninety-eight,  and  the  eighteenth  day  of  June,  one  thousand 
eight  hundred  and  twelve,  and  who  has  continued  to  reside  within  the  same, 
may  be  admitted  to  become  a  citizen  of  the  United  States  without  ha^dng  made 
any  previous  declaration  of  his  intention  to  become  such;  but  whenever  any 
person,  without  a  certificate  of  such  declaration  of  intention,  makes  application 
to  be  admitted  a  citizen,  it  must  be  proved  to  the  satisfaction  of  the  coiu't,  that 
the  ai^plicant  was  residing  within  the  limits  and  under  the  jurisdiction  of  the 
United  States,  before  the  eighteenth  day  of  June,  one  thousand  eight  hundred 
and  twelve,  and  has  continued  to  reside  within  the  same;  and  the  residence  of 
the  ajDplicant  within  the  limits  and  under  the  jurisdiction  of  the  United  States, 
for  at  least  five  yeai*s  immediately  preceding  the  time  of  such  application,  must 
be  i^roved  by  the  oath  of  citizens  of  the  United  States,  w^hich  citizens  shall  be 
named  in  the  record  as  witnesses;  and  such  continued  residence  within  the 
limits  and  under  the  jiuisdiction  of  the  United  States,  when  satisfactorily 
proved,  and  the  place  where  the  applicant  has  resided  for  at  least  five  years, 
shall  be  stated  and  set  forth,  together  with  the  names  of  such  citizens,  in  the 
record  of  the  court  admitting  the  applicant;  otherwise  the  same  shall  not  entitle 
him  to  be  deemed  and  considered  a  citizen  of  the  United  States. 

Aliens  honorably  (lm:harged  from  military  service. 

Sec.  21GG.  Any  alien,  of  the  age  of  twenty-one  j'eare  and  upwaixl,  who  has 
enlisted,  or  may  enlist,  in  the  armies  of  the  United  States,  either  the  regular  or  the 
volunteer  forces,  and  has  been,  or  may  he  hereafter,  honorably  discharged,  shall 
be  admitted  to  become  a  citizen  of  the  United  States,  upon  his  petition,  without 
any  jirevious  declaration  of  his  intention  to  become  such;  iind  he  shall  not  be 
required  to  prove  more  than  one  year's  residence  within  the  United  States  pre- 
vious to  his  application  to  become  such  citizen;  and  the  court  admitting  such 
alien  shall,  in  addition  to  such  proof  of  residence  and  good  moral  character,  as 
now  provided  by  law,  he  satisfied  by  competent  proof  of  such  person's  having 
been  honorably  discharged  from  the  service  of  the  United  States, 

Minor  residents. 

Skc.  21G7.  Any  alien,  being  under  the  age  of  twenty-one  yeara,  who  has  re- 
sided in  the  United  States  three  years  next  preceding  his  amving  at  that  age,  and 
who  has  continued  to  reside  therein  to  the  time  he  may  make  application  to  be 

72 


NATURALIZATION  LAWS.  Iviii 

admitted  a  citizen  thereof,  may,  after  lie  arrives  at  the  age  of  twentj'-one  j-ears, 
and  after  he  has  resided  five  years  Avithiu  the  United  States,  including  the  three 
years  of  his  minority,  be  admitted  a  citizen  of  the  United  States,  without  having 
made  the  declaration  required  in  the  first  condition  of  section  twenty-one  hun- 
dred and  sixty-five;  but  such  alien  shall  make  the  declaration  required  therein 
at  the  time  of  his  admission;  and  shall  further  declare,  on  oath,  and  prove  to 
the  satisfaction  of  the  court,  that,  for  two  years  next  preceding,  it  has  been  his 
bona-fide  intention  to  become  a  citizen  of  the  United  States;  and  he  shall  in  all 
other  respects  comply  with  the  laws  in  regard  to  naturalization. 
Widow  and  children  of  declarants. 

Sec.  2168.  When  any  alien,  who  has  complied  with  the  first  condition  speci- 
fied in  section  twenty-one  hundred  and  sixty-five,  dies  before  he  is  actually 
naturalized,  the  widow  and  the  children  of  such  alien  shall  be  considered  as 
citizens  of  the  United  States,  and  shall  be  entitled  to  all  rights  and  privileges 
as  such,  upon  taking  the  oath  proscribed^"'  by  law. 
Aliens  of  African  nativity  and  descent. 

Sec.  2169.  The  provisions  of  this  Title  shall  apply  to  aliens  of  African  na- 
tivity and  to  persons  of  African  descent. 
Residence  of  five  years  in  United  States. 

Sec.  2170.  No  alien  shall  be  admitted  to  become  a  citizen  who  has  not  for  the 
continued  term  of  five  years  next  preceding  his  admission  resided  within  the 
United  States. 
Alieii  enemies  not  admitted. 

Sec  2171.  No  alien  Avho  is  a  native  citizen  or  subject,  or  a  denizen  of  any 
country,  state,  or  sovereignty  with  which  the  United  States  are  at  war,  at  the 
time  of  his  application,  shall  be  then  admitted  to  become  a  citizen  of  the  United 
States;  but  persons  resident  within  the  United  States,  or  the  territories  thereof, 
on  the  eighteenth  day  of  June,  in  the  year  one  thousand  eight  hundred  and 
twelve,  who  had  before  that  day  made  a  declaration,  according  to  law,  of  their 
intention  to  become  citizens  of  the  United  States,  or  who  were  on  that  day  en- 
titled to  become  citizens  without  making  such  declaration,  may  be  admitted  to 
become  citizens  thereof,  notwithstanding  they  were  alien  enemies  at  the  time 
and  in  the  manner  prescribed  by  the  laws  heretofore  passed  on  that  subject; 
nor  shall  anything  herein  contained  be  taken  or  construed  to  interfere  with  or 
prevent  the  apprehension  and  removal,  agreeably  to  law,  of  any  alien  enemy  at 
any  time  previous  to  the  actual  naturalization  of  such  alien. 
Children  of  persons  naturalized  under  certain  laws  to  be  citizens. 

Sec.  2172.  The  children  of  persons  who  have  been  duly  naturalized  under 
any  law  of  the  United  States,  or  who,  previous  to  the  passing  of  any  law  on 
that  subject,  by  the  government  of  the  United  States,  may  have  become  citizens 
of  any  one  of  the  states,  under  the  laws  thereof,  being  under  the  age  of  twenty- 
one  years  at  the  time  of  the  naturalization  of  their  parents,  shall,  if  dwelling  in 
the  United  States,  be  considered  as  citizens  thereof;  and  the  children  of  persons 
who  now  are,  or  have  been,  citizens  of  the  United  States,  shall,  though  born 
out  of  the  limits  and  jurisdiction  of  the  United  States,  be  considered  as  citizens 
thereof;  but  no  person  heretofore  proscribed  by  any  state,  or  who  has  been 
legally  convicted  of  having  joined  the  army  of  Great  Britain  during  the  revolu- 
tionary war,  shall  be  admitted  to  become  a  citizen  without  the  consent  of  the 
legislature  of  the  state  in  which  such  person  was  proscribed. 
Police  court  of  District  of  Columbia  has  no  power  to  naturalize  foreigners. 

Sec.  2173.  The  police  court  of  the  District  of  Columbia  shall  have  no  power 
to  naturalize  foreigners. 

(a)  Error  in  the  Roll ;  Bhould  be  pracrihed. 

73 


Iviii  NATURALIZATION  LAWS. 

Naturalization  of  seamen. 

Sec.  2174.  Every  seaman,  being  a  foreigner,  who  declares  liis  intention  of  be- 
coming a  citizen  of  the  United  States  in  any  competent  court,  and  shall  have 
sen'ed  three  years  on  board  of  a  merchant-vessel  of  the  United  States  subse- 
quent to  the  date  of  such  declaration,  may,  on  his  ajjplication  to  am'  competent 
court,  and  the  production  of  his  certificate  of  discharge  and  good  conduct  during 
that  time,  together  with  the  certificate  of  his  declaration  of  intention  to  become 
a  citizen,  be  admitted  a  citizen  of  the  United  States;  and  every  seaman,  being 
a  foreigner,  shall,  after  his  declaration  of  intention  to  become  a  citizen  of  the 
United  States,  and  after  he  shall  have  served  such  three  years,  be  deemed 
a  citizen  of  the  United  States  for  the  purpose  of  manning  and  serving  on 
board  any  merchant-vessel  of  the  United  States,  au^-thing  to  the  contraiy  in 
any  act  of  congress  notwithstanding;  but  such  seaman  shall,  for  all  purposes 
of  protection  as  an  American  citizen,  be  deemed  such,  after  the  filing  of  his 
declaration  of  intention  to  become  such  citizen. 


74 


political  Cotic. 


An  Act  to  establish  a  political  code. 

Approved  March  12,  1872. 

TITLE  OF  THE  ACT. 

1.  Title  and  divisions  of  this  act. 

Section  1.  This  act  shall  be  known  as  The  Political  Code  of  the  State  of 
California,  and  is  divided  into  five  parts,  as  follows: 

Part  I.  Of  the  Sovereignty  and  People  of  the  State,  and  of  the  Polit- 
ical Rights  and  IJuties  of  all  Persons  subject  to  its  Juris- 
diction         30 

II.  Of   the   Chief   Political   Divisions,   Seat   of  Government,  and 

Legal  Distances  of  the  State 75 

III.  Of  the  Government  of  the  State 220 

IV.  Of  the  Government  of  Counties,  Cities  and  Toavns 3901 

V.  Of  the  Definition  and  Sources  of  Law;  the  Common  Law;  the 

Publication    and   Effect   of   the    Codes;    and   the  Express 
Repeal  of  Statutes MG6 

PRELIMINARY  PROVISIONS. 

2.  When  code  takes  effect. 

Sec.  2.  This  code  takes  effect  at  twelve  o'clock,  noon,  of  the  fii"st  day  of 
January,  eighteen  hundred  and  seventy -three. 

3.  Not  retroactive. 

Sec.  3.  No  part  of  it  is  retroactive,  unless  expressly  so  declared. 

4.  Construction  of  the  political  code. 

Sec.  4.  The  rule  of  the  common  law  that  statutes  in  derogation  thereof  are 
to  be  strictly  construed,  has  no  application  to  tliLs  code.  The  code  establishes 
the  law  of  this  State  respecting  the  subjects  to  which  it  relates,  and  its  pro- 
visions and  all  proceedings  under  it  are  to  be  liberally  construed,  with  a  view 
to  effect  its  objects  and  to  promote  justice. 

5.  Provisions  similar  to  existing  laws,  how  construed. 

Sec.  5.  The  provisions  of  this  code,  so  far  as  they  are  substantially  the  same 
as  existing  statutes,  must  be  construed  as  continuations  thereof,  and  not  as 
new  enactments. 

6.  Tenure  of  office. 

Sec.  6.  All  persons  who,  at  the  time  this  code  takes  effect,  hold  oflSce  under 
any  of  the  acts  repealed,  continue  to  hold  the  same  according  to  the  tenure 
thereof,  except  those  offices  which  are  not  continued  by  one  of  the  codes 
adopted  at  this  session  of  the  legislatiu-e,  and  excei^ting  offices  filled  by  ap- 

75 


6-14  POLITICAL  CODE. 

pointment.    [Amendment,  approved  March  30,  1874;  Ameyidmenfs,  1873-4,  3;  took 
effect  July  6,  1874/"^ 

7.  Construction  of  repeal  as  to  certain  officers. 

Sec.  7.  "When  any  office  is  abolished  by  the  repeal  of  any  act,  and  such  act  is 
not  in  substance  re-enacted  or  continued  in  either  of  the  four  codes,  svicli  office 
ceases  at  the  time  the  codes  take  effect. 

8.  Actions,  etc.,  not  affected  by  this  code. 

Sec.  8.  No  action  or  proceeding  commenced  before  this  code  takes  effect, 
and  no  right  accrued,  is  affected  by  its  provisions,  but  the  proceedings  therein 
must  conform  to  the  requirements  of  this  code  as  far  as  applicable. 

9.  Limitations  shall  continue  to  run. 

Sec  9.  When  a  limitation  or  period  of  time  prescribed  in  any  existing  statute 
for  acquiring  a  right  or  barring  a  remedy,  or  for  any  other  purpose,  has  begun 
to  run  before  this  code  goes  into  effect,  and  the  same  or  any  limitation  is  pre- 
scribed in  this  code,  the  time  which  has  already  run  shall  be  deemed  part  of 
the  time  prescribed  as  such  limitation  by  this  code.  [Amendment,  approved 
March  30,  1874;  Amendments,  1873-4,  1;  took  effect  July  G,  1874.^"^ 

10.  Holidays. 

Sec.  10.  Holidays,  within  the  meaning  of  this  code,  are:  Every  Sunday, 
the  first  day  of  January,  the  twenty-second  da}'  of  February,  the  fourth  of 
July,  the  twenty-fifth  day  of  December,  every  dhy  on  which  an  election  is  held 
throughout  the  State,  and  every  day  appointed  by  the  president  of  the  United 
States,  or  by  the  governor  of  this  State,  for  a  public  fast,  thanksgiving  or  holiday'. 

[In  the  city  and  county  of  San  Francisco,  the  covinty  clerk  is  obliged  to  keep 
his  office  open  on  all  election  days,  for  the  sole  purpose  of  registering  voters, 
and  giving  certificates  and  transfers.  See  act  of  March  7,  1876;  1875-6,  142; 
post  1117.] 

11.  Holidays. 

Sec.  11.  If  the  first  day  of  January,  the  twenty-second  day  of  February,  the 
fourth  of  July,  or  the  twenty-fifth  day  of  December,  fall  upon  a  Sunday,  the 
Monday  following  is  a  holiday.  [Amendment,  adopted  March  30,  1874;  Amend- 
ments, 1873-4,  2;  took  effect  July  6,  1874.^'=) 

12.  Compvdation  of  time. 

Sec  12.  The  time  in  which  any  act  provided  by  law  is  to  be  done  is  com- 
puted by  excluding  the  first  day,  and  including  the  last,  unless  the  last  day  is 
a  holida}^  and  then  it  is  also  excluded. 

13.  Certain  acts  not  to  be  done  on  holidays. 

Sec  13.  "Whenever  any  act  of  a  secular  nature,  other  than  a  w'ork  of  ne- 
cessity or  mercy,  is  appointed  by  law,  or  contract  to  be  jierformed  upon  a  par- 
ticular day,  which  day  falls  upon  a  holiday,  such  act  maj'  be  performed  upon 
the  next  business  day  with  the  same  effect  as  if  it  had  been  performed  upon 
the  day  ajijiointed. 

14.  Heal  d<fined. 

Sec  14.  AVhen  the  seal  of  a  court,  public  officer,  or  person  is  required  by 
law  to  be  affixed  to  any  paper,  the  word  "seal"  includes  an  impression  of  such 
seal  upon  the  paper  alone  as  well  as  upon  wax  or  a  wafer  affixed  thereto. 


(a)  The  original   Kection   did   not   litive   the  wordfi  read  "  tlie  time  of  limitation  contimieB  to  nni  and  has 

"and  excepting  olHces  filled  by  aiiiiointment."  the  like  eflfect  as  if  the  whole  fieriod  had  begim  and 

{h)  The  original  Kection,  inntead  of  the  words  "the  ended  after  its  adoption." 

time  whicli  has  already  nin  sliall  lie  deemed  part  of  (c)  Tlie  original   section   did  not   have   the  words 

the  time  prefscribed  as  such  liniitatiou  by  this  code"  "the  fourth  of  July." 

76 


PRELIMINARY  PROVISIONS.  15-17 

15.  Joint  authority. 

Skc.  15.  "Words  giving  a  joint  axitliority  to  three  or  more  public  ofFu-ers  or 
other  persons  are  coustriied  as  giving  such  authority  to  a  majority  of  them, 
unless  it  is  otherwise  expressed  in  the  act  giving  the  authority. 

16.  Wo7'ds  ami  plira><('s. 

Sec,  16.  Words  and  phrases  arc  construed  according  to  the  context  and  the 
approved  usage  of  the  langaiage;  but  technical  words  and  phrases,  and  such 
others  as  have  acquired  a  peculiar  and  api)ropriate  meaning  in  law,  or  ai-e  de- 
fined in  the  succeeding  section,  are  to  be  coustmed  according  to  such  peculiar 
and  appropriate  meaning  or  definition. 

17.  Worth,  xohat  they  include. 

Sec.  17.  Words  used  in  this  code  in  the  present  tense  inchide  the  future  as  well 
as  the  present;  words  used  in  the  masculine  gender  include  the  feminine  and  neu- 
ter; the  singular  mmiber  includes  the  plural,  and  the  plural  the  singular;  the  word 
"  person"  includes  a  cori:)oration  as  Avell  as  a  natural  person;  writing  includes 
printing;  oath  includes  affinnation  or  declaration;  eveiy  mode  of  oral  state- 
ment under  oath  or  affirmation  is  embraced  by  the  term  "  testify,"  and  eveiy 
written  one  in  the  term  "  depose;"  signature  or  subsciiption  includes  mark, 
when  the  person  cannot  write,  his  name  being  written  near  it,  and  witnessed  by 
a  person  who  writes  his  own  name  as  a  witness.  The  following  words,  also, 
have  in  the  code  the  signification  attached  to  them  in  this  section,  unless  other- 
wise apparent  in  the  context: 

1.  The  word  "  property"  includes  both  real  and  personal  property; 

[2.j  The  words  "  real  property "  are  coextensive  with  lands,  tenements  and 
hereditaments ; 

3.  The  words  "  personal  property"  include  money,  goods,  chattels,  things  in 
action,  and  evidences  of  debt; 

4.  The  word  "  month"  means  a  calendar  month,  unless  othenvise  expressed; 

5.  The  word  "  Avill"  includes  codicils; 

6.  The  word  "  writ"  signifies  an  order  or  precept  in  wiiting,  issued  in  the 
name  of  the  people,  or  of  a  court  or  judicial  officer;  and  the  word  "  j)rocess,"  a 
writ  or  summons  issued  in  the  course  of  judicial  proceedings; 

7.  The  word  "  vessel,"  when  used  in  reference  to  shipping,  includes  ships  of 
all  kinds,  steamboats  and  steamships,  canal  boats,  and  eveiy  structure  adapted 
to  be  navigated  from  place  to  place; 

8.  The  term  "  peace  officer"  signifies  ain-  of  the  officers  mentioned  in  section 
eight  hundred  and  seventeen  of  the  penal  code. 

9.  The  term  "  magistrate"  signifies  any  one  of  the  officers  mentioned  in  sec- 
tion eight  hundred  and  eight  of  the  penal  code; 

10.  The  word  "  state,"  when  applied  to  the  different  parts  of  the  United 
States,  includes  the  District  of  Columbia  and  the  territories;  and  the  Avords 
"United  States"  may  include  the  district  and  ten-itories.  [Amendment,  op- 
proved  March  30,  1874;  Amendments,  1873-4,  2;  took  e//'ect  July  6,  1874.^"' 

(a)  Original  section:  goods,  chattels,  evidence    of   debt,  aud  "things  in 

Sec.  17.  Wht-uevor  the  terms  mentioned  in  this  sec-  uctiou." 

tiou  are  employed  in  this  code  they  are  emi)loyed  in  5.  The  word  "  ijroijerty  "  includes  personal  aud  real 

the  senses  hereafter  affixed  to  them;  excexit  where  a  propei-ty. 

different  sense  plainly  appears:  6.  The  word  "  month  "  means  a  calendar  month,  nn- 

1.  The  term  "signature"  includes  any  name,  mark,  less  otherwise  expressed;  and  the  word  "year."  aud 
or  sign,  written  with  intent  to  authenticate  any  instru-  also  the  abbreviation  "a.  n."  is  equivalent  to  the  ex- 
ment  or  writing.  l)ression  "  year  of  oiu'  Lord." 

2.  The  term  " -nTiting  "  includes  both  printing  and  7.  The  word  "oath"  includes  "affirmation"  in  all 
writing.  cases  where  au  affirmation  may  be  substituted  for  an 

3.  The  term  "  land,"  and  the  phrases,  "  real  estate  "  oath;  aud  in  like  cases  the  word  "  swear  "  iuchides  the 
aud  "real  property,"  includes  lands,  tenements,  and  word  "affirm."  Every  mode  of  oral  statement  under 
hereditaments,  and  all  rights  thereto  aud  interests  oath  or  affirmation  is  embraced  by  the  term  "  tctftily," 
therein.  aud  every  written  one  in  the  term  "  depose." 

4.  The  words  "personal  property"  include  money,  8.  The  word  "state,"  when  applied  to  the  diflferent 

77 


18-19  POLITICAL  CODE. 

18.  Statutes,  laws,  or  rules  inconsistent  with  code  repealed. 

Sec.  18.  No  statute,  law,  or  rule  is  continued  in  force  because  it  is  consistent 
"with  the  provisions  of  this  code  on  the  same  subject,  but  in  all  cases  provided 
for  by  this  code  all  statutes,  laws,  and  rules  heretofore  in  force  in  this  state, 
whether  consistent  or  not  with  the  provisions  of  this  code,  unless  expressly 
continued  in  force  by  it,  are  repealed  and  abrogated.  This  repeal  or  abroga- 
tion does  not  revive  any  former  law  heretofore  repealed,  nor  does  it  affect  any 
right  already  existing  or  accrued,  or  any  action  or  proceeding  already  taken, 
except  as  in  this  code  provided;  nor  does  it  affect  any  private  statute  not 
expressly  repealed. 

19.  Certain  statutes  preserved. 

Sec.  19.  Nothing  in  either  of  the  four  codes  affects  any  of  the  i:)rovisions  of 
the  following  statutes,  but  such  statutes  are  recognized  as  continuing  in  force, 
notwithstanding  the  provisions  of  the  codes,  except  so  far  as  ihej  have  been 
repealed  or  affected  by  subsequent  laws: 

1.  All  acts  incoii^oratiug  or  chartei'ing  municipal  corporations,  and  acts 
amending  or  supplementing  such  acts. 

2.  All  acts  consolidating  cities  and  counties,  and  acts  amending  or  suj)ple- 
menting  such  acts. 

3.  All  acts  for  funding  the  state  debt,  or  any  part  thereof,  and  for  issuing 
state  bonds,  and  acts  amending  or  su2:)plementing  such  acts. 

4.  All  acts  regulating  and  in  relation  to  rodeos. 

5.  All  acts  in  relation  to  judges  of  the  plains. 

6.  All  acts  creating  or  regulating  boards  of  water  commissioners,  and  over- 
Beers  in  the  several  townships  or  counties  of  the  state. 

7.  All  acts  in  relation  to  a  branch  state  prison. 

8.  An  act  for  the  more  effectual  prevention  of  cruelty  to  animals,  ajDproved 
March  thii'tieth,  eighteen  hundred  and  sixty-eight. 

9.  An  act  for  the  sujDi^ression  of  Chinese  houses  of  ill-fame,  approved  March 
thirtj'-first,  eighteen  hundred  and  sixty-six. 

10.  An  act  relating  to  the  home  of  the  inebriate  of  San  Francisco,  and  to 
prescribe  the  powers  and  duties  of  the  board  of  managers  and  the  officers 
thereof,  ajoproved  April  first,  eighteen  hundred  and  seventy. 

11.  An  act  concerning  marks  and  brands  in  the  county  of  Siskiyou,  approved 
March  twentieth,  eighteen  hundred  and  sixty-six. ' 

12.  An  act  to  prevent  the  destruction  of  fish  in  the  waters  of  Bolinas  bay,  in 
Marin  county,  approved  March  thirty-first,  eighteen  hundred  and  sixty-six. 

13.  An  act  concerning  trotit  in  Siskiyou  count}',  approved  Aj^ril  second, 
eighteen  hundred  and  sixty-six. 

14.  An  act  to  prevent  the  destruction  of  fish  in  Napa  river  and  Sonoma  creek, 
appi'oved  January  twenty-ninth,  eighteen  hundred  and  sixty-eight. 

15.  An  act  to  prevent  the  destruction  of  fish  and  game  in,  upon,  and  around 
the  waters  of  lake  Merritt,  or  Peralta,  in  the  county  of  Alameda,  approved 
Mai'ch  eighteenth,  eighteen  hundred  and  seventy. 

parts  of  the  United  States,  includes  the  District  of  13.  Words  iised  in  the  present  tense  Include  the  future 

Columbia  and  the  territories;  and  the  words  "  United  but  exclude  the  past. 

States"  may  include  the  district  and  territories.  14.  The  word  "  will  "  includes  codicils. 

9.  Where  the  term  "  person  "  is  used  in  this  code  to  15.  The  word  "  writ  "  siguilics  an  order  or  precept  in 
desii^nate  the  party  whose  property  may  be  the  subject  'writing,  issued  in  the  name  of  tlie  people,  or  of  a  court, 
of  any  ofifense,  action,  or  proceediiiK.it  includes  this  or  judicial  officer. 

Btate,  any  other  state,  Kovenimeiit.  or  c<iuntry  which  IG.  "Process"  is  a  writ  or  summons  issued  in  the 

may  lawfully  own  any  jtroperty  within  this  state,  and  course  of  judicial  proceedings. 

all  xmblic  and   private  corporations  or  joint  assocla-  17.  The  word  "  vessel,"  when  used  with  reference  to 

tiouH,  as  well  as  individuals.  shipplnn.  Includes  ships  of  all  kinds,  steanibnats.  and 

10.  The  word  "person"  includes  bodies  politic  and  steamships,  canal  boats,  and  every  structure  adapted 
corporate.  to  be  navigated  from  jilace  to  place. 

11.  The  singular  number  includes  the  plural,  and  18.  The  term  "  peace  officer  "  signifies  any  oue  of  the 
the  plural  the  singular.  officers  mentioned  in  section  817  of  The  Pknal  Code. 

12.  Words  used  in  the  masculine  gender  comprehend  19.  The  term  "  magistrate  "  signifies  any  one  of  the 
BB  well  the  feminine  and  neuter.  officers  mentioned  in  section  808  of  Tue  Penal  Code. 

78 


PKELBIINARY  PROVISIONS.  19-20 

16.  An  act  to  regulate  salmon  fisheries  in  Eel  river,  in  Humboldt  countv, 
approved  Api-il  eighteenth,  eighteen  hundred  and  fifty-nine. 

17.  An  act  for  the  better  protection  of  stock-raisers  in  the  counties  of  Fresno, 
Tulare,  Monterey,  and  Mariposa,  approved  March  twentieth,  eighteen  hundred 
and  sixty-six. 

18.  An  act  concerning  oysters,  approved  April  twenty-eighth,  eighteen  hun- 
dred and  fifty-one.  , 

19.  An  act  concerning  oyster  beds,  approved  Apiil  second,  eighteen  hundred 
and  sixty-six. 

20.  An  act  concerning  gas  companies,  ajDproved  April  fourth,  eighteen  hun- 
dred and  seventy. 

21.  An  act  to  empower  the  board  of  supervisors  of  the  several  counties  of 
the  state  to  aid  in  the  constniction  of  a  railroad  in  their  respective  counties, 
ajiproved  April  fourth,  eighteen  hundred  and  seventy. 

22.  An  act  supplemental  to  the  act  mentioned  in  the  preceding  subdivision, 
approved  April  fourth,  eighteen  hundred  and  seventy, 

23.  All  acts  in  relation  to  lawful  fences,  estrays,  and  the  trespassing  of  ani- 
mals upon  private  pro^Derty, 

24.  An  act  for  the  relief  of  insolvent  debtors  and  the  protection  of  creditors, 
approved  May  fourth,  eighteen  hundred  and  sixty-two,  and  the  acts  amending 
and  sui^plementing  such  act. 

25.  All  acts  in  relation  to  taxation  for  local  purposes. 

26.  All  acts  dividing  counties  into  collection  and  assessment  districts, 

27.  All  acts  allowing  county  or  city  and  county  officers  to  appoint  deputies, 
clerks,  and  subordinate  officers,  in  so  far  as  such  acts  authorize  the  appoint- 
ment and  fix  the  compensation  of  such  deputies,  clerks,  and  subordinate 
officers. 

20.  Tliis  act,  hoiv  cited,  etc. 

Sec  20.  This  act,  whenever  cited,  enumerated,  referred  to,  or  amended,  may 
be  designated  simply  as  The  Political  Code,  adding,  when  uecessarj',  the  num- 
ber of  the  section. 


TO 


30-34  POLITICAL  CODE. 


r»^iiT   I. 

OF  THE  SOVEEEIGNTY  AND  PEOPLE  OF  THE  STATE,  AND 
OF  THE  POLITICAL  EIGHTS  AND  DUTIES  OF  ALL 
PERSONS  SUBJECT  TO  ITS  JURISDICTION. 

Title      I.  Sovereignty  of  the  State 30 

IL  Persons  Composing  the  People  of  the  State 50 

III.  Political  Eights  and   Duties  of   all  Persons  subject 

to  the  Jurisdiction  of  the  State 54 


TITLE    I. 

Soutrcjgjiti)  of  tl)c  State. 


Chapter   I.  Residence  of  Sovekeignty 30 

II.  Territorial  Jurisdiction  of  the  State 33 

III.  General  Rights  of  the  State  over  Persons 37 

IV.  General  Rights  of  the  State  over  Property 40 

CHAPTER   L 

residence  of  sovereignty. 
30.  Sovereignty  resides  in  the  people. 

Sec.  30.  The  sovereignty  of  the  state  resides  in  the  people  thereof,  and  all 
writs  and  processes  must  issue  in  their  name. 

CHAPTER   II. 

territorial  jurisdiction  of  the  state. 

33.  Territorial  jurisdiction,  limitations  on. 

Sec.  33.  The  sovereignty  and  jurisdiction  of  this  state  extends  to  all  places 
within  its  boundaries  as  established  by  the  constitution,  but  the  extent  of  such 
jurisdiction  over  places  that  have  been  or  may  be  ceded  to,  purchased,  or  con- 
demned b}^  the  United  States,  is  qualified  by  the  terms  of  such  cession  or  the 
laws  under  which  such  purchase  or  condemnation  has  been  or  may  be  made. 

34.  Legixlaiive  consent  to  pia'chase,  etc.,  of  lands  by  United  States  for  public  use; 

jurisdiction  over. 
Sec.  34.  The  legislature  consents  to  the  purchase  or  condemnation  by  the 
United  States  of  any  tract  of  land  within  this  state  for  the  purpose  of  erecting 
forts,  magazines,  arsenals,  dock-yards,  and  other  needful  buildings,  upon  the 
express  condition  that  all  civil  process  issued  from  the  courts  of  this  state,  and 
such  criminal  process  as  may  issue  under  the  authority  of  this  state,  against  any 
person  charged  with  crime,  may  bo  served  and  executed  thereon  in  the  same 
mode  and  manner  and  by  the  same  officers  as  if  the  purchase  or  condemnation 
had  not  been  made. 

An  Act  conceruiug  subiufirine  sites  for  lighthouses  find  other  aids  to  navigation  on  the  coast 
of  this  state. 

Approved  March  20,  1874;  1873-4,  C21. 

SUesfor  beacons,  etc. 

Section  1.  Whenever  the  United  States  desire  to  acquire  title  to  land  belong- 
ing to  the  state,  and  covered  by  the  navigably  waters  of  the  United  States, 

80 


SOVEKEIGNTY  OF  STATE.  36-42 

within  the  limits  thereof,  for  the  site  of  a  li^'lithouse,  beacon,  or  other  aid  to 
naAd<:^ation,  and  application  is  made  by  a  duly  authorized  agent  of  the  United 
States,  describing  the  site  required  for  one  of  the  i)nrposes  aforesaid,  then  the 
governor  of  the  state  is  authorized  and  empowered  to  convey  the  title  to  the 
United  States,  and  to  cede  to  the  said  United  States  jurisdiction  over  the  same; 
j)rovided,  no  single  tract  shall  contain  more  than  ten  acres,  and  that  the  state 
shall  retain  concurrent  jurisdiction  so  far  that  all  process,  civil  or  criminal, 
issuing  under  the  authority  of  the  state,  may  be  executed  by  the  proper  officers 
thereof,  upon  any  person  or  persons  amenable  to  the  same,  within  the  limits 
of  land  so  ceded,  in  like  manner  and  to  like  effect  as  if  this  act  had  never  been 
passed. 

Sec.  2.  This  act  shall  take  effect  immediately. 

CHAPTER  III. 

GENERAL   RIGHTS   OF   THE   STATE   OVER   PERSONS. 
37.  lliglits  over  persons  eniunerated. 

Sec.  37.  The  state  has  the  following  rights  over  persons  within  its  limits,  to 
be  exercised  in  the  cases  and  in  the  manner  provided  by  law:  . 

1.  To  punish  for  crime; 

2.  To  imprison  or  confine  for  the  protection  of  the  public  jjeace  or  health,  or 
of  individual  life  or  safety; 

3.  To  imprison  or  confine  for  the  purpose  of  enforcing  civil  remedies; 

•i.  To  establish  custody'  and  restraint  for  the  jjersous  of  idiots,  lunatics, 
drunkards,  and  other  persons  of  unsound  mind; 

5.  To  establish  custody  and  restraint  of  jjaupers  for  the  purposes  of  their 
maintenance; 

G.  To  establish  custody  and  restraint  of  minors  unprovided  for  by  natural 
guardians  for  the  purjDOses  of  their  ediication,  reformation,  and  maintenance; 

7.  To  require  services  of  jiersons,  with  or  without  comi:)ensation:  In  militaiy 
duty;  in  jury  duty;  as  witnesses;  as  town  or  village  officers;  in  highway  labor; 
in  maintaining  the  public  j^eace;  in  enforcing  the  service  of  j^rocess;  in  pro- 
tecting life  and  property  from  fire,  pestilence,  wreck  and  flood;  and  in  such 
other  cases  as  are  provided  by  statute. 

CHAPTEE  IV. 

GENERAL    EIGHTS    OF   THE   STATE   OVER   PROPERTY. 

40.  Original  and  ultimate  title. 

Sec  40.  The  original  and  ultimate  right  to  all  property,  real  and  personal, 
within  the  limits  of  this  state,  is  in  the  people  thereof. 

41.  Properly  escheats,  when. 

Sec.  41.  All  proj)erty,  real  and  personal,  within  the  limits  of  this  state,  which 
does  not  belong  to  any  person,  belongs  to  the  jjeople.  Whenever  the  title  to 
any  property  fails  for  want  of  heirs  or  next  of  kin,  it  reverts  to  the  people. 

42.  Intruders  on  public  lands  of  state. 

Sec.  42.  If  any  person,  under  any  pretense  of  any  claim  inconsistent  with 
the  sovereignty  and  jurisdiction  of  the  state,  intrudes  ui)on  any  of  the  waste 
or  ungranted  lands  of  the  state,  the  district  attorney  of  the  county  must  imme- 
diately report  the  same  to  the  governor,  who  must  thereupon,  by  a  written 
order,  direct  the  sheriff  of  the  county  to  remove  the  intinider;  and  if  resistance 
to  the  execution  of  the  order  is  made  or  threatened,  the  sheriff  may  call  to  his 
aid  the  power  of  the  county,  as  in  cases  of  resistance  to  the  writs  of  the  people. 
6  81 


43-55  POLITICAL  CODE. 

43.  A'^quisition  by  taxation  and  assessment. 

Sec.  43.  The  state  may  acquire  property  by  taxation  in  the  modes  authorized 
by  law. 

44.  By  right  of  eminent  domain. 

Sec.  44.  It  may  acquire  or  authorize  others  to  acquire  title  to  property,  real 
or  i^ersonal,  for  public  use,  in  the  cases  and  in  the  mode  provided  in  Title  VII, 
Part  III,  of  the  Code  of  Civil  Peoceduke.     [See  j)ost,  11,237.] 


TITLE  II. 

iler00U0  (Tompooiuii  tl)c  ilcoplc  of  tljc  State. 

50.  W]io  are  the  people. 

Sec  50.  The  people,  as  a  political  body,  consist: 

1.  Of  citizens  who  are  electors; 

2.  Of  citizens  not  electors. 

51.  Who  are  citizens. 

Sec.  51.  The  citizens  of  the  state  are: 

1.  All  persons  born  in  this  state  and  residing  within  it,  except  the  children 
of  transient  aliens  and  of  alien  public  ministers  and  consuls; 

2.  All  persons  born  out  of  this  state  who  are  citizens  of  the  United  States 
and  residing  within  this  state. 

52.  Residence,  rules  for  determining. 

Sec  52.  Ever)^  j^erson  has,  in  law,  a  residence.  In  determining  the  place  of 
residence  the  following  rules  are  to  be  observed: 

1.  It  is  the  iDlace  where  one  remains  when  not  called  elsewhere  for  labor  or 
other  special  or  temporary  purpose,  and  to  which  he  returns  in  seasons  of 
rejDose; 

2.  There  can  only  be  one  residence; 

3.  A  residence  cannot  be  lost  until  another  is  gained; 

4.  The  residence  of  the  father  during  his  life,  and  after  his  death  the  resi- 
dence of  the  mother,  while  she  remains  unmarried,  is  the  residence  of  the 
unmarried  minor  child; 

5.  The  residence  of  the  husband  is  the  residence  of  the  wife; 

6.  The  residence  of  an  unmarried  minor  who  has  a  parent  living  cannot  be 
changed  by  either  his  own  act  or  that  of  his  guardian; 

7.  The  residence  can  be  changed  only  by  the  union  of  act  and  intent. 


TITLE    III. 

Political  lliol)^  aiiD  Ilittir0  of  all  Pcroon^  subject 
to  tljc  Jurioi^iction  of  tlje  State. 

54.  All  persons  icilJdn  the  state  sultject  to  its  jurisdiction. 

Sec  54.  Every  person  wliile  within  this  state  is  subject  to  its  jurisdiction  and 
entitled  to  its  i)rotection. 

55.  Allegiance. 

Sec.  55.  Allegiance  is  the  obligation  of  fidelity  and  obedience  which  every 
citizen  owes  to  the  state. 

82 


POLITICAL  DIVISIONS  OF  STATE.  5G-75 

56.  Allegiance  may  he  renounced. 

Sec.  5G.  Allegiance  may  be  renounced  by  a  cliange  of  residence. 

57.  Persons  not  citizens. 

Sec.  57.  Persons  in  the  state  not  its  citizens  are  either: 

1.  Citizens  of  other  states;  or, 

2.  Aliens. 

58.  EligibiUf)/  to  office. 

Sec.  58.  Every  elector  is  eligible  to  the  office  for  which  he  is  an  elector, 
except  where  otherwise  specially  provided;  and  no  person  is  eligible  who  is  not 
such  an  elector. 

59.  Rights  and  duties  of  citizens  not  electors. 

Sec  59.  An  elector  has  no  rights  or  duties  beyond  those  of  a  citizen  not  an 
elector,  except  the  right  and  duty  of  holding  and  electing  to  office. 

60.  Rights  and  duties  of  citizens  of  other  states. 

Sec  60.  A  citizen  of  the  United  States  who  is  not  a  citizen  of  this  state,  has 
the  same  rights  and  duties  as  a  citizen  of  this  state  not  an  elector. 


I^ART   II. 

OF  THE  CHIEF  POLITICAL  DIVISIONS,  SEAT   OF  GOVEEN- 
MENT,  AND  LEGAL  DISTANCES  OF  THE  STATE. 

Title    I.  Chief  Political  Divisions  of  the  State 75 

11.  Seat  of  Government 145 

III.  Legal  Distances  in  the  State 150 

TITLE  I. 

&mi  JJoUtial  Jlivi5sion.$i  af  the  State, 

Chapter    1.  Counties 75 

II.  Senatorial  Districts 78 

III.  Congressional  Districts 117 

IV.  Judicial  Districts 125 

CHAPTEPt  I. 

counties. 
75.  Counties. 

Sec  75.  The  state  is  divided  into  counties;   the  names,  boundaries,  and  ter- 
ritorial subdivisions  thereof  are  as  declared  in  Part  IV  of  this  Code. 

[See  post,  3901.] 

83 


78  POLITICAL  CODE, 

CHAPTER  II. 

SENATORIAL    DISTRICTS. 

78.  Senatorial  and  assembly  disb'icls. 

[Sees.  78  to  106/^' inclusive,  were  superseded  by  the  following-  act:J 

An  Act  to  define  the  senatorial  and  assembly  districts  of  this  State,  and  to  apjiortion  the 

representation  thereof. 

Approved  March  IC,  1874;  1873-4,  360, 
Ft7'St. 

Section  1.  The  counties  of  San  Diego  and  San  Bernardino  shall  be  the  first 
senatorial  district,  and  shall  elect  one  senator;  and  each  of  said  counties  shall 
elect  one  member  of  the  assembly. 
Second. 

Sec.  2.  The  county  of  Los  Angeles  shall  be  the  second  senatorial  district, 
and  shall  elect  one  senator  and  two  members  of  the  assembly. 

Third. 

Sec.  3.  The  counties  of  Ventura,  Santa  Barbara,  and  San  Luis  Obispo,  shall 
be  the  third  senatorial  district,  and  shall  elect  one  senator;  Ventura  and  Santa 
Barbara,  jointly,  shall  elect  one  member  of  the  assembly,  and  San  Luis  Obispo 
shall  elect  one  member  of  the  assembly. 

Fourth. 

Sec.  4.  The  counties  of  Tulare,  Inyo,  Fresno,  Mono,  and  Kern,  shall  be  the 
fourth  senatorial  district,  and  shall  elect  one  senator;  Fresno  shall  elect  one 
member  of  the  assembly,  Tulare  and  Kern  shall  elect  jointly  one  member  of 
the  assembly,  and  Mono  and  Inyo  shall  elect  jointly  one  member  of  the  assembly. 

Fifth. 

Sec,  5,  The  counties  of  Mariposa,  Merced,  and  Stanislaus,  shall  be  the  fifth 
senatorial  district,  and  shall  elect  one  senator;  Mariposa  and  Merced  shall 
jointly  elect  one  member  of  the  Assembly,  and  Stanislaus  shall  elect  one  mem- 
ber of  the  assembly. 

Sixth. 

Sec,  6,  The  counties  of  Santa  Cruz,  Montere}',  and  San  Benito,  shall  be  the 
sixth  senatorial  district,  and  shall  elect  jointly  one  senator;  and  each  of  said 
counties  shall  elect  one  member  of  the  assembly. 

(a)  Original  (puperseded)  Sfittions:  Rkc.  91.  The  thirteenth,  of  the  eounty  of  Cnlaverns. 

Sec.  78.  The  state  is  divided  into  twenty-eight  sena-  Sec.  92.  The  fomtceuth,  of  the  counties  of  Amador 

torial  districts,  arranged  as  follows:  and  Alpine. 

Sf.c.  79.  The  tirst  senatorial  district  consists  of  the  Sec.  93.  The  fifteenth,  of  the  county  of  El  Dorado, 

counties  of  San  l)icgo  and  San  Bernardino.  Sec.  94.  The  sixteenth,  of  the  county  of  Sacramento. 

Sec.  80.  The  second,  of  the  county  of  Los  Angeles.  Sec.  95.  The  seventeenth,  of  the  counties  ot  Solano 

Sec.  81.  The  third,  of  the  counties  of  Santa  Barbara  and  Yolo, 

and  San  Luis  Obispo.  Skc.  9G.    The  eighteenth,  of  the  counties  of  Napa, 

[The  county  of  Ventura  was  added  to  the  third  sena-  Lake,  and  Mendocino, 

torial  district  by  "An  Act  to  create  the  County  of  Ven-  Sec.  97.  The  nineteenth,  of  the  county  of  Sonoma, 

tura,  to  establish  the  boundaries  thereof,  and  to  provide  Sec.  98.  The  twentieth,  of  the  county  of  Placer, 

for  its  organization,"  apju-oved  March  22,  1872;  1871-2,  Sec.  99.  The  twenty-first,  of  the  county  of  Nevada. 

484.1  Sec.  100.  The  twenty-second,  of  the  county  of  Sierra. 

Sec.  82.  The  fourth,  of  the  counties  of  Tulare,  Fres-  Sec.  101.  The  twenty-third,  of  the  counties  of  Yuba 

no.  and  Kem.  and  Sutter. 

Sec.  83.  The  fifth,  of  the  counties  of  Mariposa,  Mer-  Sec.  102.  Tlie  twenty-fourth,  of  the  counties  of  Biitte, 

ced.  and  Stanislaus.  Plumas,  and  Lassen. 

Sec.  84.  The  sixth,  of  the  counties  of  Santa  Cruz  Sec.  10;j.  The  twenty-fifth,   of  the   counties  of  Te- 

and  Monterey.  hania  and  Colusa. 

Sec.  85.  The  seventh,  of  the  county  of  Santa  Clara.  Sec.  104.  The  twenty-sixth,  of  the  counties  of  Shasta 

Sec.  80.  The  eighth,  of  the  counties  of  San  Fran-  and  Trinity. 

Cisco  and  San  Mateo.  Sec.  105.'  The   twenty-seventh,   of    the   counties   of 

Sec.  87.  The  ninth,  of  the  county  of  Alameda.  Humboldt,  Khimath,  and  Del  Norte. 

Sec.  88.  The  tenth,  of  the  counties  of  Contra  Costa  Sec.  100.  The  twenty-eighth,  of  the  county  of  Siski- 

and  Marin.  you. 

Skc.  89.  The  eleventh,  of  the  county  of  San  Joaquin. 

Sec.  90.  The  twelfth,  of  the  counties  of  Tuolumne, 
Mono,  and  Inyo. 


84 


POLITICAL  DIVISIONS  OF  STATE.  78 

Seventh. 

Sec,  7.  The  couuty  of  Santa  Clara  shall  be  the  seventh  senatorial  district, 
and  shall  elect  two  senators  and  three  members  of  the  assembly. 

EigJifh. 

Sec.  8.  The  city  and  county  of  San  Francisco,  and  the  county  of  San  Mateo, 
shall  be  the  eighth  senatorial  district,  and  shall  elect  one  seliatcn-;  the  county 
of  San  Mateo  shall  elect  one  member  of  the  iisscml)ly. 

Ninth. 

Sec.  9.  That  ijortion  of  the  city  and  county  of  San  Francisco,  boimded  and 
described  as  follows,  to  wit:  commencing-  at  a  point  where  the  southerly  line  of 
the  United  States  military'  resei-vation,  known  as  the  "Presidio  Reservation," 
intersects  with  the  waters  of  the  Pacific  ocean;  thence  meandering  along  the 
waters  of  said  ocean  and  the  waters  of  the  bay  of  San  Francisco,  northerly, 
easterly,  and  southerly,  to  the  jioint  where  Washington  street  intersects  with 
said  bay;  thence  westerly,  along  said  Washington  street,  to  its  intersection  with 
First  avenue;  thence  northerly,  along  said  avenue,  to  its  intersection  with  the 
southerly  boundary-line  of  the  said  "Presidio  Reservation;"  thence  westerly, 
and  along  the  southerly  boundary-line  of  said  "Presidio  Reservation"  to  its 
intersection  with  the  Pacific  ocean  and  the  point  of  beginning;  shall  be  the 
ninth  senatorial  district,  and  shall  elect  two  senators  and  four  members  of  the 
assembly. 

Tenth. 

Sec.  10.  That  jiortion  of  the  city  and  county  of  San  Francisco,  bounded  and 
described  as  follows,  to  wit :  commencing  at  a  point  Avhere  the  southerly  bound- 
ary-line of  the  "  Presidio  Reservation"  intersects  with  the  waters  of  the  Pacific 
ocean, thence  easterly,  and  along  the  southerly  boundary-line  of  said  "Presidio 
Reservation,"  to  the  point  w^here  First  avenue  intersects  with  said  boundarj'- 
line;  thence  southerly,  along  said  First  avenue,  to  the  point  where  Washington 
street  intersects  with  said  First  avenue;  thence  easterly,  along  said  Washington 
street,  to  its  intersection  with  the  waters  of  the  bay  of  San  Francisco;  thence 
southerly,  along  the  line  of  said  bay,  to  the  point  of  intersection  of  Market 
street  with  said  bay;  thence  westerly,  along  said  Market  street,  to  the  point 
where  Geary  street  intersects  with  said  Market  street;  thence  westerly,  along 
.said  Geary  street,  to  w^here  it  connects  with  the  Point  Lobos  toll-roac^;  thence 
along  said  Point  Lobos  toll-road,  and  said  toll-road  produced,  in  a  direct  line 
to  the  Pacific  ocean;  thence  northerly,  along  said  ocean,  to  the  point  of  begin- 
ning; shall  be  the  tenth  senatorial  district,  and  shall  elect  two  senators  and  four 
members  of  the  assembly. 

Eleventh. 

Sec  11.  That  portion  of  the  city  and  county  of  San  Francisco,  bounded  and 
described  as  follows,  to  wit:  commencing  at  a  point  on  the  line  of  Market  street 
where  Fourth  street  intersects  with  said  Market  street;  thence  easterly  and 
along  said  Market  street  to  the  waters  of  the  bay  of  San  Francisco;  thence 
southerly  and  southwesterly  along  the  line  of  the  waters  of  said  bay,  to  a  point 
where  Fourth  street  intersects  with  said  bay;  thence  noriherly  along  the  line  of 
said  Fourth  street  to  the  point  of  beginning;  shall  be  the  eleventh  senatorial 
district,  and  shall  elect  two  senators  and  four  members  of  the  assembly. 

Twelfth. 

Sec.  12.  That  portion  of  the  city  and  county  of  San  Francisco,  bounded  and 
described  as  follows,  to  wit:  commencing  at  the  intersection  of  Larkin  and 
Geary  streets,  and  running  thence  easterly  along  said  Geaiy  street  to  its  inter- 
section with  Market  street;  thence  southwesterly  along  the  line  of  said  Market 

85 


78  POLITICAL  CODE. 

street  to  the  point  of  intersection  of  Fourth  street  Avith  said  Market  street; 
thence  southerly  along  said  Fourth  street  to  the  jooint  of  its  intersection  with 
Channel  street;  thence  southwesterly  along  said  Channel  street  to  the  j^oint  of 
its  intersection  with  Eighth  street;  thence  northerly  along  said  Eighth  street  to 
the  point  of  its  intersection  with  Market  street;  thence  southwesterly  along 
said  Market  street  to  the  point  of  the  intersection  of  Larkin  street  with  said 
Market  street;  thence  northei'ly  along  said  Larkin  street  to  the  point  of  begin- 
ning; shall  he  the  twelfth  senatorial  district,  and  shall  elect  two  senators  and 
four  members  of  the  assembly. 
Tldrteenth. 

Sec.  13.  That  part  of  the  city  and  county  of  San  Francisco,  bounded  and 
described  as  follows,  to  wit:  commencing  at  a  point  where  the  Point  Lobos 
toll-road  produced  in  a  direct  line  westerly,  intersects  with  the  waters  of  the 
Pacific  ocean,  and  running  thence  easterly  along  said  Point  Lobos  toll-road 
to  the  point  of  its  connection  with  Geary  street;  thence  along  said  Geary  street 
easterly  to  its  intersection  with  Larkin  street;  thence  southerly  along  said 
Larkin  street  to  the  jDoint  of  its  intersection  with  Market  street;  thence  north- 
easterly along  said  Market  street  to  the  point  where  Eighth  street  intersects 
with  said  Market  street;  thence  southeasterly  along  said  Eighth  street  to  its 
intersection  with  Channel  sti'eet;  thence  northeasterly  along  said  Channel  street 
to  the  point  of  its  intersection  with  Fourth  street;  thence  southeasterly  along 
said  Fourth  street  to  the  point  of  its  intersection  with  the  bay  of  San  Francisco; 
thence  southerly  along  the  line  of  the  waters  of  said  bay  to  the  point  of  inter- 
section of  the  boundary-line  between  the  city  and  county  of  San  Francisco  and 
the  county  of  San  Mateo  with  the  waters  of  said  bay;  thence  westerly  along 
said  boundary-line  to  the  point  of  its  intersection  with  the  Pacific  ocean;  thence 
northerly  along  the  line  of  said  ocean  to  the  point  of  beginning;  shall  be  the 
thirteenth  senatorial  district,  and  shall  elect  two  senators  and  four  members  of 
the  assembly. 

Fourteenth. 

Sec.  14.  The  county  of  Alameda  shall  be  the  fourteenth  senatorial  district, 
and  shall  have  two  senators  and  three  members  of  the  assembly. 
Fifteenth. 

Sec.  15.  The  counties  of  Contra  Costa  and  Marin  shall  be  the  fifteenth  sena- 
torial district,  and  shall  elect  one  senator,  and  each  of  said  counties  shall  elect 
one  member  of  the  assembly. 
Sixteenth. 

Sec.  16.   The  counties  of  San  Joaquin  and  Amador  shall  be  the  sixteenth 
senatorial  district;    San  Joaquin  shall   elect   one  senator,   and,   jointly  with 
Amador,  shall  elect  one  senator;  San  Joaquin  shall  elect  three  members  of  the 
assembly,  and  Amador  shall  elect  two  members  of  the  assembly. 
Seventeenth. 

Sec.  17.  The  counties  of  Tuolumne  and  Calaveras  shall  be  the  seventeenth 
senatorial  district,  and  shall  elect  one  senator,  and  each  of  said  counties  shall 
elect  one  member  of  the  assembly. 
Eigliteenth. 

Sec.  18.  The  county  of  Sacramento  shall  be  the  eighteenth  senatorial  district, 
and  shall  elect  two  senators  and  three  members  of  the  assembly. 
Nineteenth. 

Sec  19.  The  counties  of  Solano  and  Yolo  shall  be  the  nineteenth  senatorial 
district;  Solano  shall  elect  one  senator  and  two  members  of  the  assem1)ly;  Yolo 
shall  elect  one  member  of  the  assembly,  and,  jointly  with  Solano,  shall  elect 
one  senator. 

86 


POLITICAL  DIVISIONS  OF  STATE.  78 

Tiventielh. 

Sec.  20.  The  counties  of  Napa,  Lake,  and  Sononaa  shall  constitute  the 
twentieth  senatorial  district,  and  shall  elect  one  senator;  and  Napa  and  Lake 
counties  shall  each  elect  one  member  of  the  assembly. 

Ttoeiity-firsf. 

Sec.  21.  The  count}'  of  Sonoma  shall  be  the  twenty-first  senatorial  district, 
and  shall  elect  one  senator  and  three  members  of  the  assembly. 

Twenlij-second. 

Sec.  22.  The  county  of  Placer  shall  be  the  twenty-second  senatorial  district, 
and  shall  elect  one  senator  and  one  member  of  the  assembly. 

Tweniy-thi?-d. 

Sec.  23.  The  counties  of  El  Dorado  and  Alpine  shall  be  the  twenty-third 
senatorial  district,  and  shall  elect  one  senator;  the  county  of  El  Dorado  shall 
elect  one  member  of  the  assembly;  and  the  counties  of  El  Dorado  and  Alpine 
shall,  jointly,  elect  one  member  of  the  assembly. 

I'wenty- fourth. 

Sec.  24.  The  counties  of  Nevada  and  Sierra  shall  be  the  twenty-fourth  sena- 
torial district;  Nevada  shall  elect  one  senator  and  three  members  of  the  assembly; 
SieiTa  shall  elect  one  member  of  the  assembly  and  one  senator,  jointly,  with 
Nevada. 

Tice7ify-ffth. 

Sec.  25.  The  counties  of  Tuba  and  Sutter  shall  be  the  twenty-fifth  senatorial 
district,  and  shall  elect  one  senator;  Yuba  shall  elect  two  members  of  the 
assembly,  and  Sutter  shall  elect  one  member  of  the  assembly. 

Twenty-sixth. 

Sec.  26.  The  counties  of  Butte,  Plumas,  and  Lassen  shall  be  the  twenty-sixth 
senatorial  district,  and  shall  elect  one  senator;  Butte  shall  elect  two  members  of 
the  assembly,  and  Plumas  and  Lassen  shall,  jointly,  elect  one  member  of  the 
assembly. 

l^wenty-seventh. 

Sec.  27.  The  counties  of  Mendocino,  Humboldt,  Klamath,  and  Del  Noi-te 
shall  be  the  twenty-seventh  senatorial  district,  and  shall  elect  one  senator; 
Humboldt  and  Mendocino  shall  each  elect  one  member  of  the  assembly,  and 
Klamath  and  Del  Norie  shall,  jointly,  elect  one  member  of  the  assembly. 

lluenty-eighth. 

Sec.  28.  The  counties  of  Siskiyou,  Modoc,  Trinity,  and  Shasta  shall  be  the 
twenty-eighth  senatorial  district,  and  shall  elect,  jointly,  one  senator;  Siski^-ou 
and  Modoc  shall  elect,  jointly,  one  member  of  the  assembly;  Trinity  and  Shasta 
shall  elect,  jointly,  one  member  of  the  assembly. 

Twe7ity-)iinth. 

Sec.  29.  The  counties  of  Colusa  and  Tehama  shall  be  the  twenty-ninth 
senatorial  district,  and  shall  elect  one  senator  and  one  member  of  the  assembly. 

0/  elect  io7is. 

Sec.  30.  At  the  general  election  to  be  held  in  the  year  eighteen  hundred  and 
seventy-five,  and  every  four  years  thereafter,  there  shall  be  elected  in  the  fii*st, 
fifth,  sixth,  seventh,  eighth,  ninth,  tenth,  eleventh,  fourteenth,  fifteenth,  six- 
teenth, eighteenth,  nineteenth,  twentieth,  twenty-seventh,  and  twenty-ninth 
districts,  one  senator  each,  and  in  the  twelfth  and  thirteenth  districts,  two  sena- 
tors each. 

Sec.  31.  At  the  general  election  to  be  held  in  the  year  eighteen  hundred  and 
seventy-seven,  and  every  fom*  years  thereafter,  there  shall  be  elected  in  the 

87 


78-125  POLITICAL  CODE. 

second,  third,  foiirtli,  seventh,  ninth,  tenth,  eleventh,  fourteenth,  sixteenth, 
seventeenth,  eig-hteenth,  nineteenth,  twenty-first,  twenty-second,  twenty-third, 
twenty-fifth,  twenty-sixth  and  twenty-eighth  districts,  one  senator  each,  and  in 
the  twenty-fourth  district,  two  senators. 

Sec.  32.  At  the  general  election  to  be  held  in  the  year  eighteen  hundred  and 
seventy-five,  and  every  two  years  thereafter,  members  of  the  assembly  shall  be 
elected  in  the  several  districts  and  counties  of  the  state  as  is  provided  in  this 
act. 

Sec.  33.  All  acts  and  parts  of  acts  in  conflict  with  the  provisions  of  this  act 
are  hereby  repealed. 

CHAPTEE  IIL 

CONGRESSIONAL  DISTRICTS. 

117.   Gongressioyial  disti'icls. 

[Sec.  117  ^"^  was  superseded  by  the  following  act.    See  also  post,  4479:] 

Au  Act  to  divide  the  state  into  cougressioual  districts. 

Approved  Marcli  30,  1872;  1871-2.  714. 

Section  1.  For  the  purpose  of  electing  representatives  to  the  congress  of  the 
United  States,  the  state  is  hereby  divided  into  districts,  as  follows : 

First. 

Sec.  2.  The  first  district  shall  be  composed  of  the  city  and  county  of  San 
Francisco. 

Seco7id. 

Sec  3.  The  second  district  shall  be  composed  of  the  counties  of  Contra 
Costa,  Alameda,  San  Joaquin,  Calaveras,  Amador,  El  Dorado,  Sacramento, 
Placer,  Nevada,  Alpine,  and  Tuolumne. 

Sec.  4.  The  third  district  shall  be  composed  of  the  counties  of  Marin,  So- 
noma, Napa,  Lake,  Solano,  Yolo,  Sutter,  Yuba,  Sierra,  Butte,  Plumas,  Lassen, 
Tehama,  Colusa,  Mendocino,  Hiunboldt,  Trinity,  Shasta,  Siskiyou,  Klamath, 
and  Del  Norte. 

Fourth. 

Sec  5.  The  fourth  district  shall  be  comj)osed  of  the  counties  of  San  Diego, 
Los  Angeles,  San  Bernardino,  Santa  Barbara,  San  Luis  Obispo,  Tulare,  Mon- 
terey, Fresno,  Kern,  Merced,  Marix^osa,  Stanislaus,  Santa  Clara,  Santa  Cruz, 
San  Mateo,  Mono  and  Inyo. 

Sec  6.  This  act  shall  take  effect  and  be  in  force  from  and  after  its  passage. 


CHAPTEE  IV. 

JUDICIAL    DISTRICTS. 
125.  Judicial  dislricis. 

Sec  125.  The  state  is  divided  into  seventeen  judicial  districts,  arranged  as 
described  in  this  chaj^ter. 

(a)  Orifcinal  Bection:  meda,  San  Joaquia,  Tuolumne,  Mono,  CalavernB,  Am- 

Sec.  117.  The  state  is  dividfd  into  three   congres-  ador,   El    Dorado,    Sacramento,  Placer,    Nevada    and 

sioual  diBtricts,  arranged  as  lollowB:  Alpine;  and, 

1.  The  first  congressional  district  consists  of  the  3.  Tlie  tliird,  of  the  countieB  of  Marin,  Sonoma, 
counties  of  San  Diego,  Los  Angeles,  San  Bernardino,  Napa,  Lake,  Solano,  Yolo,  Sutter,  Yuba,  Sierra,  Butte, 
Santa  Barbara,  San  Luis  Obispo,  Tulare,  Monterey,  Plumas,  Lassen,  Tehama,  Colusa,  Mendocino,  Hum- 
Fresno,  Merced,  Mariposa,  Stanislaus,  Santa  Clara,  boldt.  Trinity,  Shasta,  Siskiyou,  Klamath  and  Del 
Santa  Cruz,  San  Mateo,  San  Francisco,  Inyo  and  Kern;  Norte. 

2.  The  second,  of  the  counties  of  Contra  Costa,  Ala- 


POLITICAL  DIVISIONS  OF  STATE.  12G-136 

126.  Fir f<t  judicial  disb-ict. 

Sec.  12().  The  first  judicial  district  consists  of  the  counties  of  Santa  Barbara 
and  San  Luis  Obispo. 

[The  county  of  Ventura  Avas  added  to  the  first  judicial  district  by  "  An  act  to 
create  the  county  of  Ventura,  to  establish  the  boinidunes  thereof,  and  to  pro- 
vide for  its  organization."     Ajiproved  March  22,  1872;  1871-2,  484. J 

127.  Second  judicial  disb-ict. 

Sec.  127.  The  second,  of  the  counties  of  Tehama,  Butte,  Plumas,  and  Lassen. 

[Plumas  and  Lassen  counties  were  attached  to  and  now  constitute  part  of  the 
twentv-first  judicial  district,  by  "  An  act  to  create  the  twenty-first  judicial  dis- 
trict,''' approved  Febniaiy  15,  187G;  1875-6,  58;  given  post,'l42.] 

128.  Third  judicial  district. 

[Sec  128^"'  was  superseded  by  the  act  given  below,  i)ost,  142.  See  also 
post,  4479. J 

129.  Fourth  judicial  district. 

[Sec.  129""  was  suijerseded  by  the  act  given  below,  post,  142.  See  also 
post,  4449.] 

130.  Fifth  judicial  district. 

Sec  130.  The  fifth,  of  the  counties  of  San  Joaquin,  Tuolumne,  and  Stan- 
islaus. 

131.  Sixth  judicial  district. 

Sec  131.  The  sixth,  of  the  counties  of  Sacramento  and  Yolo. 

132.  Seventh  judicial  district. 

Sec  132.  The  seventh,  of  the  counties  of  Napa,  Lake,  and  Solano.  [Amend- 
ment, approved  March  29,  1876;  Amendments,  1875-G;  took  effect  from  jxissage.'-''^ 

133.  Eighth  judicial  district. 

Sec  133.  The  eighth,  of  the  counties  of  Humboldt,  Klamath,  and  Del  Norte. 

134.  Ninth  judicial  district. 

Sec  134.  The  ninth,  of  the  counties  of  Shasta,  Trinity,  and  Siskiyou. 

[The  county  of  Modoc  was  added  to  the  ninth  judicial  district  by  "An  act  to 
create  the  county  of  Modoc,  to  establish  the  boundaries  thereof,  and  to  provide 
for  its  organization,"  approved  February  17,  1874;  1873-4,  124.  It  was  after- 
wards attached  to  the  twenty-first  judicial  district,  to  which  it  now  belongs,  by 
"An  act  to  create  the  twenty-first  judicial  district,"  a^iproved  February  15, 
1876;  1875-6,  58;  given  post,  142.] 

135.  Tenth  judicial  district. 

Sec  135.  The  tenth,  of  the  counties  of  Yuba,  Sutter,  Colusa,  and  Sierra. 

136.  Eleventh  judicial  district. 

Sec.  136.  The  eleventh,  of  the  counties  of  Calaveras,  Amador,  and  El 
Dorado. 


(a)  Original  section:  feet  from  the  eastern  line  of  Kearny  street;  thence  at 

Sec.  128.  The   third,  of  the  counties  of  Monterey,  right  angles  soiitherly  to  the  southeni  line  of  tin- City 

Santa  Cruz,  Sauta  Clara,  and  Alameda.  Hall  or  court-house;  thence  ensterly  along  the  southern 

(6)   Original  section;  side  of  that  building  to  the  eustiru  side  thereof ;  thence 

Sec.  12>.».  The  fourth,  of  that  portion  of  the  city  and  northerly  along  the  eastern  line  thereof  to  a    point 

county  of    Sau  Francisco  embraced  within  lines  de^  eight  imhes  north  of  the  northern  line  tliereof;  thence 

scribed  as  follows:  Commencing  at  the  western  bound-  at  right  angles  westerly  to  the  centre  of  Kearny  street; 

ary  of  the  city  and  county,  at  a  point  in  a  line  with  thence  nortlierly  along  Kearny  street  to  the  northern 

Kidley  street  ;    thence   easterly  in   a    line   with   and  boundaiy  of  the  city  and  county;   thence  along  the 

through  the  centre   of  Ridley  street  to  the  centre  of  northern  and  western  boundary  of  the  city  and  county 

Market  street;  thence  northeasterly  along  the  centre  to  the  place  of  beginning. 

of  Market  street  to  the  centre  of  Kearny  street;  thence         (c)  The  original  section  had  the  words  "  Marin,  So- 
northerly  along  the  centre  of  Kearny  street  to  a  point  noma.  Mendocino"  before  "  Napa." 
in  a  line  with  the  northern  side  of  the  City  Hall  or         Marin,  Sonoma,  and  Mendocino  counties  now  corn- 
court-house;  thence  easterly  to  and  along  the  northern  pose  the  twenty-second  judicial  district.   See  postillS. 
line  of  the  city  hall  or  court-house  to  a  point  sixty-five 

89 


137-142  POLITICAL  CODE. 

137.  Tivelfih  judicial  district. 

[Sec.  137^*^  was  superseded  by  the  act  given  below,  jDOst,  142.  See  also  post, 
4479.] 

138.  Thirteenth  judicial  district. 

Sec.  138.  The  thirteenth,  of  the  counties  of  Tulare,  Fresno,  Merced,  and 
Mariposa. 

139.  Fourteenth  judicial  district. 

Sec  139.  The  fourteenth,  of  the  counties  of  Placer  and  Nevada. 

140.  Fifteenth  judicial  district. 

[Sec.  140^^'  was  superseded  by  the  act  given  below,  post,  142.     See  post,  4479.] 

141.  Sixteenth  judicial  district. 

Sec.  141,  The  sixteenth,  of  the  counties  of  Alj)ine,  Mono,  Inyo,  and  Kern. 

142.  Seventeenth  judicial  district. 

[Sec.  142-'='  was  superseded  by  the  act  of  Februaiy  20,  1872,  given  below. 
See  also  post,  4479.] 

[The  foregoing  sections  128,  129,  137,  140  and  142,  in  relation  to  the  third, 
fourth,  twelfth,  fifteenth  and  seventeenth  judicial  districts,  though  not  exjaressly 
amended  or  repealed,  have  been  superseded  by  the  following  acts:] 

An  Act  to  create  the  eigliteenth  judicial  district,  and  for  other  purposes. 
Approved  February  20, 1872;  1871-2, 116. 

Seventeenth  judicial  district. 
Eighteenth  judicial  district. 

Section  1.  The  seventeenth  judicial  district  of  this  state  is  hereby  di\dded, 
and  the  eighteenth  judicial  district  created.  The  county  of  Los  Angeles  shall 
remain  and  hereafter  constitute  the  seventeenth  judicial  district.  The  counties 
of  San  Diego  and  San  Bernardino  shall  be  hereafter  known  as  and  constitute 
the  eighteenth  judicial  district. 

Suits  transferred. 

Sec  2.  Suits  brought  and  matters  now  pending  in  the  district  couri  of  the 
counties  of  San  Diego  and  San  Bernardino  shall  be  heard  and  determined  in 
the  eighteenth  judicial  district,  as  if  such  suits  had  been,  after  the  creation  of 
it,  there  commenced;  and  the  process  of  the  district  court  of  the  eighteenth 
judicial  district  shall  be  as  effective  for  all  such  purposes  as  if  the  same  were 
issued  from  the  seventeenth  judicial  district. 
Terms. 

Sec  3.  The  terms  of  the  district  court  of  the  eighteenth  judicial  district, 
during  each  year,  shall  commence  as  follows:  In  the  county  of  San  Diego,  on 
the  third  Monday  of  January,  April,  July,  and  October;  in  the  county  of  San 
Bernardino,  on  the  second  Monday  of  March,  June,  September,  and  December. 
[Amendment  approved  March  10,  187G;  1875-6,  314;  took  effectfrom  passage.'-'^^ 


(a)  Original  section:  thence  southerly  along  the  eastern   line   of    Kearny 

Sec.  1.37.  The  twelfth,  of  the  county  of  San  Mateo  street  to  the  lentre  of  Market  street;  thence  north- 

and  all  that  portion  of  the  city  and  county  of  San  Fran-  easterly  alon^  the  centre  of  IMarket  street  to  the  eastern 

Cisco  lying  south  of  a  line  described  as  follows:  Com-  boundary  of  the  city  and  county, 

mencing  at  the   western    boundary  of    the   city  and  (h)  Original  section: 

county,  at  a  point  in  a  line  with  the  centre  of  Ridley  Skc.  140.  The  fifteenth,  of  the  county  of  Contra  Costa 

street;    thence  running  easterly  in  a  Urn',  with   and  and  all  that  i)ortion  of  the   city  and  county  of  San 

through  tlie  centre  of  Ridley  street  to  the  centre  of  Francisco  not  included  witliin  the  limits  of  the  fourth 

Market  street;  thence  northeasterly  along  the  centre  and  twelfth  judicial  districts. 

of  Market  street  to  Kearny  street;  thence  northeast-  (c)   Original  section: 

erly  along  the  centre  of  Kearny  street  to  a  jtoiut  in  a  Sec.  ii'l.  The    stventet'nth,  of  the  counties  of  Los 

line  with  the  northern  side  of  the  City  Hall  or  court-  Angeles,  San  Bernardino,  and  San  Diego, 

house;  thence  easterly  to  and  ahrng  the  northern  line  {d)  The  original  section  instead  of  "  third,"  had  the 

of  the  City  Hall  or  court-house  to  a  i)oint  sixty-live  word  "  second."     It  also  bore  the  following  additional 

feet  from  the  eastern  line  of  Kearny  street;  thence  at  sentence  at  the  end:  "Said  terms  shall  continue  until 

right  angles  southerly  to  the  southern  line  of  the  City  the  time  fixed  for  holding  a  term  in  another  or  the 

Hall  or  court-house;  thence  along  the  southern  line  same  county  in  the  district,  if  the  business  of  the 

of  that  building  to  the  eaetem  line  of  Kearny  street;  court  shall  require  it." 

90 


POLITICAL  DIVISIONS  OF  STATE.  142 

Election  of  judge. 

Sec.  4.  At  the  special  judicial  election  of  the  year  one  thousand  eight  hun- 
dred and  seventy-three,  and  every  six  years  tliereafter,  a  district  judge  shall  ho 
elected  for  the  eighteenth  judicial  district;  and  the  judge  so  elected  shall  enter 
upon  the  discharge  of  his  duties  as  such  on  the  first  day  of  January  after  his 
election. 

Appointment. 

Sec  5.  The  governor  shall  appoint  and  commission,  immediately  after  the 
passage  of  this  act,  some  suitable  person  learned  in  the  law,  and  a  resident 
of  said  eighteenth  judicial  district,  as  district  judge  of  said  eighteenth  judicial 
district,  -who  shall  hold  his  office  until  his  successor  shall  have  been  elected  and 
qualified,  as  provided  in  .section  four  of  this  act. 
Salanj. 

Sec.  G.  The  judge  of  the  eighteenth  judicial  district  shall  receive  a  salaiy  of 
foui-  thousand  dollars  per  annum,  i)ayable  in  the  same  manner  as  the  salaries  of 
other  district  judges  of  this  State. 

Sec.  7.  This  act  shall  take  effect  and  be  in  force  from  and  after  its  passage. 

An  Act  creating  the  nineteeuth  and  twentieth  judicial  districts,  and  defining  the  third, 
fourth,  twelfth  and  fifteenth  judiciul  districts. 

Approved  March  8,  1872;  1871-2,  301. 

Ttcentieth  judicicd  district. 

Section  1.  The  twentieth  judicial  district  shall  be  comjiosed  of  the  counties 
of  Monterey,  Santa  Cruz,  and  Santa  Clara. 
Third  judicial  district. 

Sec  2.  The  thiixl  judicial  district  shall  be  composed  of  the  county  of  Ala- 
meda, and  all  that  portion  of  the  city  and  county  of  San  Francisco  described  as 
follows:  Commencing  at  the  eastern  boundary  line  of  said  city  and  county,  at 
a  point  in  a  line  with  the  centre  of  Market  street;  thence  southerly  along  the 
centre  line  of  Market  street  to  its  intersection  with  the  easterl}'  line  of  Kearny 
street ;  thence  northerly  along  said  eastern  line  of  Kearny  street  to  the  centre 
of  California  street;  thence  easterly  along  the  centre  line  of  California  street  to 
the  noriherly  line  of  Market  street;  thence  easterly  along  the  northerly  line  of 
Market  street  and  in  the  same  course  to  the  eastern  boundary  of  said  city  and 
county;  thence  southerly  along  said  eastern  boundaiy  of  the  city  and  county  of 
San  Francisco  to  the  place  of  commencement. 

Fifteenth  judicial  district. 

Sec  3.  The  fifteenth  judicial  district  shall  be  composed  of  the  county  of 
Contra  Costa  and  all  that  portion  of  the  city  and  county  of  San  Francisco 
described  as  follows:  Commencing  at  a  point  in  the  eastern  boundary -line  of 
said  city  and  county  where  the  northern  line  of  Market  street  protracted  inter- 
sects the  same;  thence  southwesterly  and  along  the  northern  line  of  Market 
street  to  the  centre  of  California  street;  thence  westerly  and  along  the  centre 
of  California  street  to  the  eastern  line  of  Kearny  street;  thence  northerly  along 
the  eastern  line  of  Kearny  street  to  the  south  line  of  the  City  Hall  or  court- 
house; thence  easterly  along  the  south  line  of  said  building  to  the  southeast 
corner  thereof;  thence  northerly  along  the  east  line  of  said  building  and  in  the 
same  direction  to  a  point  eight  inches  north  of  the  noi'th  line  of  said  building; 
thence  westerly  and  parallel  with  the  north  line  of  said  building  to  the  centre 
of  Keju-ny  street;  thence  northerly  and  along  the  centre  of  Kearny  street  to  the 
northern  boundary  of  said  city  and  county;  thence  easterly  and  southerly  along 
the  boundary  of  said  city  and  county  to  the  place  of  beginning. 

Nineteenth  judicial  district. 

Sec  4.  The  nineteenth  judicial  district  shall  be  composed  of  all  that  portion 

91 


142  POLITICAL  CODE. 

of  the  city  and  county  of  San  Francisco  described  as  follows:  Commencing  at 
a  point  in  the  centre  of  Market  street  in  a  line  -u-ith  tlie  centre  of  Larkin  street* 
tbence  running  northerly  and  along  the  centre  of  Larkin  street  to  a  point  in 
the  centre  of  Washington  street;  thence  easterly  and  along  the  centre  of  Wash- 
ington street  to  the  centre  of  Kearny  street;  thence  southerly  along  the  centre 
of  Kearny  street  to  the  centre  of  Market  street;  thence  southwesterly  along  the 
centre  of  Market  street  to  the  place  of  commencement. 

Fourth  judicial  district. 

Sec.  5.  The  fourth  judicial  district  shall  be  comj)osed  of  all  that  portion  of 
the  city  and  count}"  of  San  Francisco  described  as  follows:  Commencing  at  the 
western  boundary  of  said  city  and  county  at  a  point  in  a  line  with  the  centre  of 
Ridley  street;  thence  easterly  and  along  the  centre  of  Ridley  street  to  the  cen- 
tre of  Market  street;  thence  northeasterly  and  along  the  centre  of  Market  street 
to  a  point  in  a  line  with  the  centre  of  Larkin  street;  thence  northerly  along  the 
centre  of  Larkin  street  to  the  centre  of  Washington  street;  thence  easterly 
along  the  centre  of  Washington  street  to  the  centre  of  Kearny  street;  thence 
southerly  along  the  centre  of  Kearny  street  to  a  point  in  a  line  with  the  north 
side  of  the  City  Hall  or  court-house;  thence  easterly  to  and  along  the  northern 
line  of  the  City  Hall  or  court-house,  sixty-five  feet  from  the  eastern  line  of 
Kearny  street;  thence  southerly  at  a  right  angle  to  the  south  line  of  said  City 
Hall  or  court-house;  thence  at  a  right  angle  easterly  along  the  south  line  of 
said  building  to  the  east  line  thereof ;  thence  northerly  along  said  east  line  of 
said  building  to  a  point  eight  inches  north  of  the  north  line  of  said  building; 
thence  at  a  right  angle  westerly  to  the  centre  of  Kearny  street;  thence  north- 
erly along  the  centre  of  Kearny  street  to  the  northern  boundary  of  said  city 
and  county;  thence  westerly  along  the  northern  boundary  and  southerl}-  along 
the  western  boundary  of  said  city  and  county  of  San  Francisco  to  the  place  of 
commencement. 

Twelfth  judicial  district. 

Sec.  G.  The  twelfth  judicial  district  shall  be  composed  of  the  county  of  San 
Mateo  and  all  that  portion  of  the  city  and  county  of  San  Francisco  described 
as  follows:  Commencing  at  the  western  boundary  of  said  city  and  count}"  at  a 
point  in  a  line  with  the  centre  of  Ridley  street;  thence  limning  easterly  in  a 
line  with  and  through  the  centre  of  Ridley  street  to  the  centre  of  INIarket 
street;  thence  easterly  along  the  centre  of  Market  street  to  a  i^oint  in  a  line 
with  the  centre  of  Kearny  street;  thence  northeasterly  along  the  centre  of 
Kearny  street  to  a  point  in  a  line  with  the  northern  side  of  the  City  Hall  or 
court-house;  thence  easterly  and  along  the  northern  line  of  the  City  Hall  or 
court-house  to  a  point  sixty-five  feet  from  the  eastern  line  of  Kearny  street; 
thence  at  a  right  angle  souUiei'ly  to  the  southern  line  of  the  Cit}"  Hall  or  court- 
house; thence  along  the  southern  line  of  that  building  to  the  eastern  line  of 
Kearny  street;  then<e  southerly  along  the  eastern  line  of  Kearny  street  to  the 
centre  of  Market  street;  thence  northeasterly  along  the  centre  of  Market  street 
to  the  eastern  boundary  of  the  city  and  county  of  San  Francisco;  thence  south- 
erly along  said  eastern  boundary  and  westerly"  along  the  southern  boundary  and 
northerly  along  the  western  boundary  to  the  place  of  commencement. 

D  islrici  j  u  dgcH. 

Sec.  7.  The  district  judges  of  the  third,  fcnirtli,  twelfth  and  fifteenth  judicial 
districts,  as  herein  defined,  sljidl  continue  to  be  the  respective  judges  of  said 
districts  until  the  expiration  of  their  respective  terms  of  office. 

Aiypointinents. 

Sec.  8,  The  governor  shall  ajipoint,  immediatel}'  after  the  passage  of  this 

92 


POLITICAL  DFV^ISIONS  OF  STATE.  142 

act,  some  suitable  persons  as  district  judges  of  the  nineteenth  and  twentieth 
judicial  districts,  respectively,  who  shall  hold  their  respective  offices  until  the 
election  and  qualification  of  their  successors  at  the  next  special  judicial  elec- 
tion. 

Salaries. 

Sec.  9.  The  district  judge  of  the  twentieth  judicial  district  shall  receive  the 
sum  of  five  thousand  dollars  per  annum,  and  the  district  judge  of  the  nineteenth 
judicial  district  shall  receive  the  sum  of  six  thousand  dollars  per  annum,  which 
respective  salaries  shall  be  payable  at  the  same  time  and  in  the  same  manner  as 
the  salaries  of  other  district  judges  are  paid. 

ClerLs. 

Sec.  10.  The  county  clerk  of  the  city  and  county  of  San  Francisco  shall  be 
ex  officio  clerk  of  the  district  court  of  the  third  judicial  district,  in  and  for  said 
city  and  county,  and  also  ex  officio  clerk  of  the  district  court  of  the  nineteenth 
judicial  district,  and  is  hereby  authorized  to  appoint  one  register  clerk  and  one 
court-room  clerk  for  each  of  said  courts,  each  of  whom  shall  receive  a  salaiy  of 
one  hundred  and  seventy-five  dollars  per  month;  also,  one  additional  copying 
clerk,  who  shall  receive  a  salaxy  of  one  hundred  and  fifty  dollars  per  mouth. 
Such  salaries  shall  be  paid  in  the  same  manner  as  the  salaries  of  other  dej)uties 
of  said  county  clerk. 

Deputy  sheriffs. 

Sec.  11.  The  sheriff  of  said  city  and  county  of  San  Francisco  is  hereby 
authorized  to  appoint  two  deputies,  in  addition  to  those  now  appointed  by  him, 
who  shall  act  as  bailiffs  or  deputy  sheriffs  of  said  third  and  nineteenth  disti'ict 
courts,  in  and  for  the  city  and  county  of  San  Francisco,  who  shall  each  receive 
a  salary  of  one  hundred  and  fifty  dollars  per  month,  to  be  paid  in  the  same 
manner  as  other  deputies  of  said  sheriff  are  paid. 

Su  i/s  transferred. 

Sec.  12.  Suits  brought  and  matters  j^ending  in  the  district  covtrt  in  the  coun- 
ties of  Monterey,  Santa  Cruz  and  Santa  Clara,  shall  be  heard  and  determined 
iu  the  district  couri  of  the  twentieth  judicial  district,  in  and  for  said  counties 
respectively,  as  if  such  matters  had  been  commenced  in  the  district  coiu't  of 
that  district,  and  the  process  of  said  district  court  shall  be  effectual  for  all 
purposes  as  if  the  same  were  issued  from  the  district  court  of  the  third  jvidicial 
district;  and  the  records  of  the  district  court  of  the  third  judicial  district,  in 
and  for  said  counties  of  Monterey,  Santa  Cruz  and  Santa  Clara,  shall  remain 
the  records  and  papers  of  the  twentieth  judicial  district  court. 

Tei'ins. 

Sec  13.  The  terms  of  the  district  court  of  the  twentieth  judicial  district  shall 
commence  as  follows:  In  the  county  of  Santa  Clara  on  the  first  Monday  of  Jan- 
uary, May,  and  September  of  each  year;  in  the  county  of  Santa  Cruz  on  the 
second  Monday  of  February,  June,  and  October  of  each  year;  in  the  county  of 
Monterey  on  the  third  Monday  of  March,  July,  and  November  of  each  year. 

Sec  14.  The  terms  of  the  district  court  of  the  third  judicial  district  shall 
commence  as  follows:  In  the  county  of  Alameda  on  the  third  Monday  of  Feb- 
ruary, June,  and  October  of  each  year;  in  the  city  and  county  of  San  Francisco 
on  the  third  Monday  of  April,  August,  and  December  of  each  year. 

Sec  15.  The  terms  of  the  district  court  of  the  nineteenth  judicial  district  shall 
commence  on  the  second  Monday  of  April,  August,  and  December  of  each  year. 

Sec  16.  This  act  shall  take  effect  immediately. 

93 


142  POLITICAL  CODE. 

An  Act  to  create  the  twenty-first  judicial  district. 

Approved  February  15,  187G;  1875-6,  58. 

Ticenfy-firM  judicial  district. 

Section  1.  The  twenty-first  judicial  district  is  hereby  created,  and  shall  be 
composed  of  the  counties  of  Modoc,  Lassen,  and  Plumas. 

Actions  pending. 

Sec  2.  All  actions  and  proceedings  pending  in  the  district  court  in  said  coun- 
ties at  the  time  this  act  goes  into  effect,  shall  be  proceeded  with,  heard,  and 
determined  in  the  twenty-first  judicial  district,  as  if  such  action  or  proceeding 
had  been  commenced  therein. 

Terms. 

Sec  3.  In  the  twenty-first  judicial  district  the  terms  of  the  district  court  shall 
be  held  as  follows:  In  the  county  of  Modoc  on  the  first  Monday  of  February, 
May,  August,  and  November;  in  the  county  of  Lassen  on  the  third  Monday  of 
February,  May,  August,  and  November;  in  the  county  of  Plumas  on  the  second 
Monday  of  March,  first  Monday  of  June,  September,  and  December. 

Election  of  judge. 

Sec  4.  At  the  special  judicial  election  held  in  the  year  one  thousand  eight 
hundred  and  seventy-seven,  and  every  six  years  thereafter,  a  district  judge  shall 
be  elected  for  the  twenty-first  judicial  district,  and  the  judge  so  elected  shall  go 
into  office  on  the  first  Monday  of  January  next  after  his  election. 

Appointment. 

Sec.  5.  When  this  act  goes  into  effect  the  governor  shall  immediately  appoint 
some  person  as  district  judge  of  the  twenty-first  judicial  district,  who  shall  hold 
his  office  until  his  successor  is  elected  and  qualified,  as  provided  in  this  act. 

Salary, 

Sec  G.  The  district  judge  of  the  twenty-first  judicial  district  shall  receive  a 
salary  of  four  thousand  dollars  per  annum,  payable  at  the  same  time  and  in  the 
same  manner  as  the  salaries  of  other  district  judges  of  this  state. 

Sec  7.  This  act  shall  take  effect  and  be  in  force  from  and  after  the  first  day  of 
June,  A.  D.  eighteen  hundred  and  seventy-six. 

An  Act  to  create  the  twenty-second  judicial  district. 

Approved  March  29,  1876;  1875-6,  528. 

Twenty-second  judicial  district. 

Section  1.  The  twenty-second  judicial  district  is  hei'eby  created,  and  shall  be 
composed  of  the  counties  of  Mendocino,  Sonoma,  and  Marin. 

Actions  pending. 

Sec  2.  All  actions  and  proceedings  pending  in  the  district  court  in  said  coun- 
ties at  the  time  this  act  goes  into  effect,  shall  be  proceeded  Avith,  heard  and 
determined  in  the  twenty-second  judicial  district,  as  if  such  action  or  j)roceed- 
ing  had  been  commenced  therein. 

Terms. 

Sec  8.  In  the  twenty-second  judicial  district  the  terms  of  the  said  court  shall 
be  as  follows:  In  the  county  of  Marin  on  the  third  Mondays  of  March,  July, 
and  November;  in  the  county  of  Mendocino  the  second  Mondays  of  Apiil, 
August,  and  December;  in  the  county  of  Sonoma  on  the  first  Mondays  of  May 
and  September,  and  the  first  Monday  of  February. 

Election  of  judge. 

Sec  4.  At  the  special  judicial  election  held  in  the  year  one  thousand  eight 
hundred  and  seventy-seven,  and  eveiy  six  years  thereafter,  a  district  judge  shall 
be  elected  for  the  twenty-second  judicial  district,  and  the  judge  so  elected  shall 
go  into  office  on  the  first  Monday  of  January  next  after  his  election. 

94 


LEGAL  DISTANCES.  142-155 

Appomtment. 

Sec.  5.  When  this  act  goes  into  effect  the  governor  shall  immediately  appoint 
some  pex'son  as  district  judge  of  the  twenty-second  ju<licial  district,  who  sluill 
hold  his  office  until  his  successor  is  elected  and  qualified,  as  provided  in  this  act. 

Salanj. 

Sec.  G.  The  district  judge  of  the  twenty-second  judicial  district  shall  receive 
a  salary  of  live  thousand  dollars  per  annum,  payal)le  at  the  same  time  and  iu 
the  same  manner  as  the  salaries  of  other  district  judges  of  this  state. 

Sec.  7.  This  act  shall  take  effect  from  and  after  its  passage. 


TITLE  11. 

Scat  of  ©oucnimcul 

145.   Located  at  Sacramento. 

Sec.  145.  The  seat  of  government  of  this  state  is  at  the  city  of  Sacramento. 

TITLE   III. 

§ti}(\\  Jlbtaucc$  iu  tljc  State. 

[This  entire  title  was  amended  by  act  approved  April  3,  187G;  Amendments 
1875-G,  3,  so  as  to  read  as  follows.  The  original  title  had  sections  150  to 
201  inclusive,  enlarged  by  the  amendment,  as  seen  below,  to  sections  from  150 
to  203  inclusive.] 

150.  Legal  distances. 

Sec  150.  The  legal  distances  in  this  state  are  fixed  as  follows: 

151.  Alameda. 

Sec.  151.  From  the  county  seat  of  Alameda  county  to  Sacramento,  ninety- 
one  (91)  miles;  to  Napa,  forty-six  (46)  miles;  to  Stockton,  eighty-five  (85)  miles; 
to  San  Quentin,  nineteen  (19)  miles. 

152.  Alpine. 

Sec.  152.  From  the  county  seat  of  Alpine  county  to  Sacramento,  two  hundred 
and  twenty-five  (225)  miles;  to  Napa,  two  hundred  and  eighty-six  (286)  miles; 
to  Stockton,  two  hundred  and  seventy-three  (273)  miles;  to  San  Quentin,  three 
hundred  and  twenty-one  (321)  miles. 

153.  Amador. 

Sec.  153.  From  the  county  seat  of  Amador  county  to  Sacramento,  fifty-nine 
(59)  miles;  to  Napa,  one  hundred  and  ten  (110)  miles;  to  Stockton,  fifty-seven 
(57)  miles;  to  San  Quentin,  one  hundred  and  forty-five  (145)  miles. 

154.  Butte. 

Sec  154.  From  the  county  seat  of  Butte  county  to  Sacramento,  seventy-eight 
(78)  miles;  to  Napa,  one  hundred  and  thirty-nine  (139)  miles;  to  Stockton,  one 
hundred  and  twenty-six  (126)  miles;  to  San  Quentin,  one  hundred  and  seventy- 
four  (174)  miles. 

155.  Calaveras. 

Sec  155.  From  the  county  seat  of  Calaveras  county  to  Sacramento,  seventy- 
three  (73)  miles;  to  Napa,  one  hundred  and  thirty-four  (134)  miles;  to  Stockton, 
sixty  (60)  miles;  to  San  Quentin,  one  hundred  and  sixty-four  (164)  miles. 

95 


15G-1GG  POLITICAL  CODE. 

156.  Colusa. 

Sec.  156.  From  the  county  seat  of  Colusa  county  to  Sacramento,  eighty  (80) 
miles;  to  Napa,  one  hundred  and  forty-one  (141)  miles;  to  Stockton,  one  hun- 
dred and  twenty-eight  (128)  miles;  to  San  Quentin,  one  hundred  and  seventy- 
six  (176)  miles. 

157.  Contra  Costa. 

Sec.  157.  From  the  county  seat  of  Contra  Costa  county  to  Sacramento,  eighty- 
nine  (89)  miles;  to  Napa,  eighteen  (18)  miles;  to  Stockton,  one  hundred  and 
twenty-one  (121)  miles;  to  San  Quentin,  forty-one  (41)  miles. 

158.  Del  Norte. 

Sec.  158.  From  the  county  seat  of  Del  Norte  county  to  Sacramento,  three 
hundred  and  sixty-four  (364)  miles;  to  Napa,  three  hundred  and  nineteen  (319) 
miles;  to  Stockton,  three  hundred  and  seventy-two  (372)  miles;  to  San  Quentin, 
two  hundred  and  ninety-two  (292)  miles. 

159.  El  Dorado. 

Sec.  159.  From  the  county  seat  of  El  Dorado  county  to  Sacramento,  sixtj'-one 
(61)  miles;  to  Napa,  one  hundred  and  twenty-two  (122)  miles;  to  Stockton,  one 
hundred  and  nine  (109)  miles;  to  San  Quentin,  one  hundred  and  fifty-seven 
(157)  miles. 

160.  Fresno. 

Sec  160.  From  the  county  seat  of  Fresno  county  to  Sacramento,  one  hundred 
and  sixty-nine  (169)  miles;  to  Napa,  two  hundred  and  thirty  (230)  miles;  to 
Stockton,  one  hundred  and  thirteen  (113)  miles;  to  San  Quentin,  two  hundred 
and  seven  (207)  miles. 

161.  Humboldt. 

Sec  161.  From  the  county  seat  of  Humboldt  county  to  Sacramento,  three 
hundred  and  twelve  (312)  miles;  to  Napa,  two  hundred  and  sixty-seven  (267) 
miles;  to  Stockton,  three  hundred  and  twenty  (320)  miles;  to  San  Quentin, 
two  hundred  and  forty  (240)  miles. 

162.  Inyo. 

Sec  162.  From  the  county  seat  of  Inyo  county  to  Sacramento,  four  hun- 
dred and  seventy-one  (471)  miles;  to  Napa,  five  hundred  and  thirty -two  (532) 
miles;  to  Stockton,  four  hundred  and  twenty-three  (423)  miles;  to  San  Quentin, 
five  hundred  and  eight  (508)  miles. 

163.  Kern. 

Sec.  163.  From  the  county  seat  of  Kern  county  to  Sacramento,  two  hundred 
and  seventy-eight  (278)  miles;  to  NajDa,  three  hundred  and  thirty-nine  (339) 
miles;  to  Stockton,  two  hundred  and  thirty  (230)  miles;  to  San  Quentin,  three 
hundred  and  fifteen  (315)  miles. 

164.  Lake. 

Sec  164.  From  the  county  seat  of  Lake  county  to  Sacramento,  two  hundred 
and  four  (204)  miles;  to  Napa,  one  hundred  and  fifty-nine  (159)  miles;  to  Stock- 
ton, two  hundred  and  twelve  (212)  miles;  to  San  Quentin,  one  hundred  and 
thirty-two  (132)  miles. 

165.  Lassen. 

Sec  165.  From  the  county  seat  of  Lassen  county  to  Sacramento,  one  hun- 
dred and  eightj'-three  (183)  miles;  to  Napa,  two  hundred  and  forty-four  (244) 
miles;  to  Stockton,  two  hundred  and  thirty-one  (231)  miles;  to  San  Quentin, 
two  hundi-ed  and  seventy-nine  (279)  niilos. 

166.  IjOS  Angeles. 

Sec.  166.  From  the  county  seat  of  Los  Angeles  county  to  Sacramento,  four 

96 


LEGAL  DISTANCES.  166-177 

hundred  and  seventy-eiglit  (478)  miles;  to  Napa,  four  hundred  and  thirty -three 
(433)  miles;  to  Stockton,  four  hundred  and  eighty-six  (48G)  miles;  to  San 
Quentin,  four  hundred  and  six  (406)  miles. 

167.  Ifarin. 

Sec.  167.  From  the  county  seat  of  Marin  county  to  Sacramento,  ninety-six 
(96)  miles;  to  Napa,  fifty-one  (51)  miles;  to  Stockton,  one  hundred  and  four 
(104)  miles;  to  San  Quentin,  three  (3)  miles. 

168.  Mariposa. 

Sec.  168.  From  the  county  seat  of  Mariposa  county  to  Sacramento,  one 
hundred  and  fifty-six  (156)  miles;  to  Napa,  two  hundred  and  seventeen  (217) 
miles;  to  Stockton,  one  hundred  and  nine  (109)  miles;  to  San  Quentin,  one 
hundred  and  ninety-three  (193)  miles. 

169.  Mendocino. 

Sec.  169.  From  the  county  seat  of  Mendocino  county  to  Sacramento,  two 
hundred  and  five  (205)  miles;  to  Napa,  one  hundred  (100)  miles;  to  Stockton, 
two  hundred  and  thirteen  (213)  miles;  to  San  Quentin,  one  hundred  and  thirty- 
three  (133)  miles. 

170.  Merced. 

Sec.  170.  From  the  county  seat  of  Merced  county  to  Sacramento,  one 
hundred  and  fourteen  (114)  miles;  to  Napa,  one  hundred  and  seventy-five  (175) 
miles;  to  Stockton,  sixty-six  {QQ)  miles;  to  San  Quentin,  one  hundred  and 
fifty-two  (152)  miles. 

171.  Modoc. 

Sec.  171.  From  the  county  seat  of  Modoc  county  to  Sacramento,  three 
hundred  and  seventy-nine  (379)  miles;  to  Napa,  four  hundred  and  forty  (440) 
miles;  to  Stockton,  four  hundred  and  twenty-seven  (427)  miles;  to  San  Quentin, 
four  hundred  and  seventy-five  (475)  miles. 

172.  Mono. 

Sec.  172.  From  the  county  seat  of  Mono  county  to  Sacramento,  two  hundred 
and  ninety-six  (296)  miles;  to  Napa,  three  hundred  and  fifty-seven  (357)  miles; 
to  Stockton,  three  hundred  and  forty-four  (344)  miles;  to  San  Quentin,  three 
hundred  and  ninety-two  (392)  miles. 

173.  Monterey. 

Sec.  173.  From  the  county  seat  of  Monterey  county  to  Sacramento,  one 
hundred  and  ninety-six  (196)  miles;  to  Napa,  one  hundred  and  fifty-seven  (157) 
miles;  to  Stockton,  one  hundred  and  forty-eight  (148)  miles;  to  San  Quentin, 
one  hundred  and  thirty  (130)  miles. 

174.  Napa. 

Sec.  174.  From  the  county  seat  of  Napa  covmty  to  Sacramento,  sixty-one  (61) 
miles;  to  Stockton,  eighty-seven  (87)  miles;  to  San  Quentin,  fifty-one  (51)  miles. 

175.  Nevada. 

Sec.  175.  From  the  county  seat  of  Nevada  county  to  Sacramento,  seventy-one 
(71)  miles;  to  Napa,  one  hundred  and  thirty-two  (132)  miles;  to  Stockton,  one 
hundred  and  nineteen  (119)  miles;  to  San  Quentin,  one  hundred  and  sixty-seven 
(167)  miles. 

176.  Placer. 

Sec.  176.  From  the  county  seat  of  Placer  county  to  Sacramento,  thirty-seven 
(37)  miles;  to  Napa,  ninety-eight  (98)  miles;  to  Stockton,  eighty-five  (85)  miles; 
to  San  Quentin,  one  hundred  and  thirty-three  (133)  miles. 

177.  Plumas. 

Sec.  177.  From  the  county  seat  of  Plumas    county    to   Sacramento,  one 
7  97 


177-188  POLITICAL  CODE. 

Luudred  and  thirty-six  (136)  miles;  to  Napa,  one  hundred  and  ninety-seven 
(197)  miles;  to  Stockton,  one  hundred  and  eighty-four  (IS-l)  miles;  to  San 
Quentin,  t^YO  hundred  and  thirty-two  (232)  miles. 

178.  Sacramento. 

Sec.  178.  From  the  county  seat  of  Sacramento  to  Napa,  sixty-one  (61)  miles; 
to  Stockton,  forty-eight  (48)  miles;  to  San  Quentin,  ninety-six  (96)  miles. 

179.  San  Benito. 

Sec.  179.  From  the  county  seat  of  San  Benito  county  to  Sacramento,  one 
hundred  and  seventy-three  (173)  miles;  to  Naj^a,  one  hundred  and  thirty -four 
(134)  miles;  to  Stockton,  one  hundred  and  twenty-five  (125)  miles;  to  San 
Quentin,  one  hundred  and  seven  (107)  miles. 

180.  San  Bernardino. 

Sec.  180.  From  the  county  seat  of  San  Bernardino  county  to  Sacramento, 
five  hundred  and  eighty-eight  (588)  miles;  to  Napa,  five  hundred  and  forty- 
three  (543)  miles;  to  Stockton,  five  hundred  and  thirty  (530)  miles;  to  San 
Quentin,  five  hundred  and  sixteen  (516)  miles. 

181.  San  Diego. 

Sec.  181.  From  the  county  seat  of  San  Diego  count}',  to  Sacramento,  five 
hundred  and  fifty-two  (552)  miles;  to  Napa,  five  hundred  and  seven  (507)  miles; 
to  Stockton,  five  hundred  and  sixty  (560)  miles;  to  San  Quentin,  four  hundred 
and  eighty  (480)  miles. 

182.  San  Francisco. 

Sec.  182.  From  the  county  seat  of  San  Francisco  county  to  Sacramento, 
eighty-four  (84)  miles;  to  Napa,  thirty-nine  (39)  miles;  to  Stockton,  ninety-two 
(92)  miles;  to  San  Quentin,  twelve  (12)  miles. 

183.  San  Joaquin. 

Sec.  183.  From  the  county  seat  of  San  Joaquin  county  to  Sacramento, 
forty-eight  (48)  miles;  to  Napa,  eighty-seven  (87)  miles;  to  San  Quentin,  one 
hundred  and  four  (104)  miles. 

184.  San  Luis  Obispo. 

Sec.  184.  From  the  county  seat  of  San  Luis  Obispo  county  to  Sacramento, 
two  hundred  and  ninety-three  (293j  miles;  to  Napa,  two  hundred  and  forty- 
eight  (248)  miles;  to  Stockton,  two  hundred  and  eighty-seven  (287)  miles;  to 
San  Quentin,  two  hundred  and  twenty-one  (221)  miles. 

185.  San  Mateo. 

Sec.  185.  From  the  county  seat  of  San  Mateo  county  to  Sacramento,  one 
hundred  and  five  (105)  miles;  i6  Napa,  sixty  (60)  miles;  to  Stockton,  one 
hundred  and  thirteen  (113)  miles;  to  San  Quentin,  thirty-three  (33)  miles. 

186.  Santa  Barbara. 

Sec.  186.  From  the  county  scat  of  Santa  Barbara  county  to  Sacramento, 
three  hundred  and  sixty-nine  (369)  miles;  to  Napa,  three  hundred  and  twenty- 
four  (324)  miles;  to  Stockton,  three  hundred  and  seventy-seven  (377)  miles;  to 
San  Quentin,  two  hundred  and  ninety-seven  (297)  miles. 

187.  Santa  Clara. 

Sec.  187.  From  the  county  seat  of  Santa  Clara  county  to  Sacramento,  one 
hundred  and  twenty-eight  (128)  miles;  to  Napa,  eighty-nine  (89)  miles;  to 
Stockton,  eighty  (80)  miles;  to  San  Quentin,  sixty-two  (62)  miles. 

188.  Santa  Cruz. 

Sec.  188.  From  the  county  seat  of  Santa  Cruz  county  to  Sacramento,  two 
hundred  and  five  (205)  miles;  to  Naj):!,  one  hundred  and  sixty  (160)  miles;  to 
Stockton,  one  hundred  and  fifty-one  (151)  miles;  to  San  Quentin,  one  hundred 
and  thirty-three  (133)  miles. 

98 


LEGAL  DISTANCES.  189-199 

189.  Sliasta. 

Sec.  189.  From  the  county  seat  of  Shasta  conntj  to  Sacramento,  one  hun- 
dred and  seventy-seven  (177)  miles;  to  Napa,  two  hundred  and  thirty-eight  (2.38) 
miles;  to  Stockton,  two  hundred  and  twenty-five  (225)  miles;  to  San  Quentin, 
two  hundred  and  seventy -three  (273)  miles. 

190.  Sierra. 

Sec.  190.  From  the  county  seat  of  Sierra  county  to  Sacramento,  one  hun- 
dred and  nineteen  (119)  miles;  to  Napa,  one  hundred  and  seventy  (170)  miles; 
to  Stockton  one  hundred  and  sixty-seven  (167)  miles;  to  San  Quentin,  two 
hundred  and  fifteen  (215)  miles. 

191.  Siskiyou. 

Sec.  191.  From  the  county  seat  of  Siskiyou  county  to  Sacramento,  two  hun- 
dred and  eighty-five  (285)  miles;  to  Napa,  three  hundred  and  forty-six  (34G) 
miles;  to  Stockton,  three  hundred  and  thirty-three  (333)  miles;  to  San  Quentin, 
three  hundred  and  seventy-one  (371)  miles. 

192.  Solano. 

Sec.  192.  From  the  county  seat  of  Solano  county  to  Sacramento,  forty  (40) 
miles;  to  Napa,  twenty-one  (21)  miles;  to  Stockton,  eighty- eight  (88)  miles; 
to  San  Quentin,  fifty-six  (56)  miles. 

193.  Sonoma. 

Sec.  193.  From  the  county  seat  of  Sonoma  county  to  Sacramento,  one  hun- 
dred and  forty-one  (141)  miles;  to  Napa,  thirty-five  (35)  miles;  to  Stockton, 
one  hundred  and  forty-nine  (149)  miles;  to  San  Quentin,  sixty-nine  (G9)  miles. 

194.  Stanislaus. 

Sec.  194.  From  the  county  seat  of  Stanislaus  county  to  Sacramento,  seventy- 
seven  (77)  miles;  to  Napa,  one  hundred  and  thirty-eight  (138)  miles;  to  Stock- 
ton, thirty  (30)  miles;  to  San  Quentin,  one  hundred  and  fourteen  (114)  miles. 

195.  Sutter. 

Sec.  195.  From  the  county  seat  of  Sutter  county  to  Sacramento,  fifty  (50) 
miles;  to  Napa  one  hundred  and  eleven  miles;  to  Stockton,  ninety-eight  miles; 
to  San  Quentin,  one  hundred  and  forty-six  miles. 

196.  Tehama. 

Sec.  196.  From  the  county  seat  of  Tehama  county  to  Sacramento,  one  hun- 
dred and  thirty-five  miles;  to  Napa,  one  hundred  and  ninety-six  miles;  to  Stock- 
ton, one  hundred  and  eighty-three  miles;  to  San  Quentin,  two  hundred  and 
thirty-one  miles. 

197.  Trinity. 

Sec.  197.  From  the  county  seat  of  Trinity  count}'  to  Sacramento,  two  hun- 
dred and  seventeen  miles;  to  Napa,  two  hundred  and  seventy-eight-miles;  to 
Stockton,  two  hundred  and  sixty-five  miles;  to  San  Quentin,  three  hundred  and 
thirteen  miles. 

198.  Tulare. 

Sec.  198.  From  the  county  seat  of  Tulare  count}^  to  Sacramento,  two  hun- 
dred and  eleven  miles;  to  Napa,  two  hundred  and  seventy-two  miles;  to  Stock- 
ton, one  hundred  and  sixty-three  miles;  to  San  Quentin,  two  hundred  and 
forty-nine  miles. 

199.  Tuolumne. 

Sec.  199.  From  the  county  seat  of  Tuolumne  county  to  Sacramento,  one 
hundred  miles;  to  Napa,  one  hundred  and  sixty-one  miles;  to  Stockton,  fifty- 
two  miles;  to  San  Quentin,  one  hundred  and  sixty-six  miles. 

99 


200-203  POLITICAL  CODE. 

200.  Ventura. 

Sec.  200.  From  the  county  seat  of  Yentura  county  to  Sacramento,  tliree  hun- 
dred and  ninety-two  miles;  to  Napa,  three  hundred  and  forty-seven  miles; 
to  Stockton,  four  hundred  miles;  to  San  Quentin,  three  hundred  and  twenty 
miles. 

201.  Yolo. 

Sec.  201.  From  the  county  seat  of  Yolo  county  to  Sacramento,  twenty 
miles;  to  Napa,  forty-one  miles;  to  Stockton,  sixty-eight  miles;  to  San  Quentin, 
ninety-two  miles. 

202.  Yuba. 

Sec.  202.  From  the  county  seat  of  Yuba  county  to  Sacramento,  fifty-two 
miles;  to  Napa,  one  hundred  and  thirteen  miles;  to  Stockton,  one  hundred 
miles;  to  San  Quentin,  one  hundred  and  foi-ty-six  miles. 

203.  Mileage. 

Sec.  203.  When  mileage  is  allowed  by  law  to  any  person,  the  distance  must 
be  computed  as  herein  fixed.  \ Amendment  of  entire  title,  approved  April  3, 1876; 
Amendments,  1875-6,  3;  took  effect  immediately;  repealed  conjiicting  acts.'-^'' 


I^^RT   III. 

OF  THE  GOVEENMENT  OF  THE  STATE. 

Title  I.  Public  Oiticers 220 

II.  Elections 1041 

III.  Education 1385 

IV.  Militia 1895 

V.  Public  Institutions 2136 

VI.  Public  Ways 2348 

VIL  General  Police  of  the  State 2949 

VIII.  Property  of  the  State 3395 

IX.  Revenue  of  the  State 3607 


TITLE  I. 

Public  ©fficcr^. 


Chapter  I.  Classification  of  Public  Officers 220 

II.  Legislative  Officers 225 

III.  Executive  Officers 341 

IV.  Judicial  Officers 726 

V.  Salaries  of  Judicial  Officers 736 

VI.  Ministerial  and  other  Officers  connected  with  the  Courts  749 
VII.  General  Provisions  relative  to^duterent  Classes  of  Of- 

FICEES 841 

(o)  It  is  deemed  impraoticable  to  give  the  original  i,  1874;  Amendmonts  1873-4,  61,  and  as  to  Sutter  by  act 

sections  providing  legal  distances.     If  desired,  they  of  March  :iO,  1«74;  Amtudiiients   lH7:?-4,  3.     The  dis- 

can  be  found  in  editions  of  the  Political  Code  as  up-  tances  in  Ventura  county  were  provided  for  by  act  of 

proved  in  3873,  amended  as  to  Inyo  by  act  of  February  January  9,  1S74;  1873-4,  21. 

100 


PUBLIC  OFFICEES.  220-228 

CHAPTEE  I. 

CLASSIFICATION  OF  PUBLIC  OFFICERS. 

220.   Classification  of  public  officers. 

Sec.  220.  The  public  officers  of  this  state  are  classified  as  follows: 

1.  Legislative; 

2.  Executive; 

3.  Judicial; 

4.  Ministerial  officers  and  officers  of  the  courts; 

But  this  classification  is  not  to  be  construed  as  defining  the  legal  powers  of 
either  class. 

CHAPTER  II. 

LEGISLATIVE   OFFICEES. 

Aeticle  I.  Designation,  Tebm  of  Office,  and  Election  of  Members 22.5 

II .  Meeting  and  Organization  of  the   Legislature 235 

III.  Number,    Designation,   Election  and  Appointment  of   Officers  and  Em- 

ployees of  the  Legislature 245 

IV.  Powers  and  Duties  of  Officers  and  Employees  of  the  Legislature 252 

V.  Compensation  op  Members,  Officers,  and  Employees  of  the  Legislature.   266 

VI.  Contesting  Elections  for  Members  op  the  Legislature 273 

VII.  Contesting  Elections  for  Governor  or  Lieutenant-Governor 288 

VIII.  Attendance  and  Examination  of  Witnesses  before  the  Legislature  and  Com- 
mittees thereof 300 

IX.  Enactment  op  Statutes 309 

X.  Promulgation  op  Statutes 318 

XI.  Operation  op  Statutes 323 

XII.  Public  Eeports 332 


ARTICLE  I. 

NUMBER,    DESIGNATION,    TEKM     OF     OFFICE,    AND     ELECTION     OF     MEMBERS    OF    THE 

LEGISLATURE. 

225.  Number  and  designation. 

Sec  225.  The  legislature  consists  of: 

1.  Forty  senators;  and, 

2.  Eighty  members  of  the  assembly. 

226.  Term  of  office. 

Sec.  226.  The  tenn  of  office  of  a  senator  is  four  years;   of  a  member  of  the 
assembly,  two  years. 
228.   Election  of  senators  and  members  of  assembly. 

[Secs.  227,  228,  229,  and  230<"^  were  superseded  by  "An  act  to  define  the 
senatorial  and  assembly  districts  of  this  state,  and  to  a^Dportion  the  representa- 

(a)   Original  (superseded)  sections:  the  eighth  senatorial  district,  three  senators — two  by 

Sec.  227.  At  the  general  election  in  the  year  eighteen  the  county  of  San  Francisco,  and  one  by  the  counties 

hundred  and  seventy-three,  and  at  the  general  election  of  San  Francisco  and  San  Mateo  jointly;   and  in  the 

every  four  years  thereafter,  there  must  be  elected  in  twentj'-third  senatorial   district,   one  senator  by  the 

the   second,    third,   fourth,    seventh,   ninth,   twelfth,  county  of  Yuba;  and  in  the  twenty-fourth  senatorial 

thirteenth,    fourteenth,    fifteenth,    sixteenth,    seven-  district,  one  senator  by  the  counties  of  Butte,  Plumas, 

teenth,    nineteenth,    twentieth,   twenty-first,   twenty-  and  Lassen,  jointly. 

second,   and  twenty-eighth    senatorial    districts,   one  Sec.  229.    The  members  of  the   assembly  miist  be 

senator  each;  and  in  the  eighth  senatorial  district,  two  elected  at  the  general  election  in  the  year  eighteen 

senators  by  the  county  of  San  Francisco;  and  in  the  hundred  and  seventy-three,  and  at  the  general  election 

twenty-third   senatorial  district,  one   senator  by  the  every  two  years  thereafter. 

counties  of  Yuba  and  Sutter  jointly;  and  in  the  twenty-  Sec.  230.  The  number  of  members  of  the  assembly  to 

fourth  senatorial  district,  one  senator  by  the  county  be  chosen  in  the  several  counties  is  as  follows  :  In  the 

of  Butte.  county  of  San  Diego,  one;  in  the  county  of  San  Bernar- 

Sec.  228.  At  the  general  election  in  the  year  eighteen  dino,  one;  in  the  county  of  Los  Angeles,  two;  in  the 

hundred  and  seventy-five,  and  at  the  general  election  counties  of  Santa  Barbara  and  San  Luis  Obispo,  one; 

every  four  years  thereafter,  there  must  be  elected  in  in  the  coimty  of  Fresno,  one ;  in  the  counties  of  Tulare 

the  first,  fifth,  sixth,  tenth,  eleventh,  twelfth,   thir-  and  Kern,  one;  in  the  county  of  Mariposa,  one;  in  the 

teenth,    fifteenth,    sixteenth,    eighteenth,    twentieth,  counties  of  Merced  and  Stanislaus,  one;  in  the  county 

twenty-first,   twenty-fifth,   twenty-sixth,   and   twenty-  of  Santa  Cruz,  one;  in  the  county  of  Monterey,  one;  in 

seventh  senatorial  districts,  one  senator  each;  and  in  the  county  of  Santa  Clara,  three;  in  the  county  of  San 

101 


228-245  POLITICAL  CODE. 

tiou  thereof,"  approved  March  IG,  1874;  1873-4,  3GG.     The  act  is  given  in  full, 
ante,  78.] 

AKTICLE  11. 

MEETING   AND    ORGANIZATION    OF    THE    LEGISLATURE. 

235.  Time  and  place  of  meeting. 

Sec.  235.  The  legislature  must  assemble  at  the  seat  of  government  on  the 
first  Monday  in  December,  eighteen  hundred  and  seventy-three,  and  on  the 
first  Monday  in  December  every  two  years  thereafter. 

236.  Certificate  of  election  evidence  of  right  to  seat. 

Sec.  236.  The  certificate  of  election  is  prima  facie  evidence  of  the  right  to 
membership.  [Amendment,  approved  March  30,  1874;  Amendments  1873-4,  3; 
took  effect  July  G,  1874.^"' 

237.  Secretary,  cleric,  and  sergeant-at-arms  to  hold  until  successors  elected. 

Sec.  237.  The  secretary  of  the  senate,  and  clerk  of  the  assembly,  the  minute 
clerks,  and  sergeant-at-ai'ms  of  each  house  for  any  session  must,  at  the  next 
succeeding  session  of  the  body  perform  the  duties  of  their  offices  until  their 
successors  are  elected  and  qualified. 

238.  Senate,  organization  of. 

Sec.  238.  At  the  hour  of  twelve  o'clock  m.,  on  the  day  appointed  for  the 
meeting  of  any  regular  session  of  the  legislature,  the  president  of  the  senate, 
or  in  case  of  his  absence  or  inability,  then  the  senior  member  present,  must 
take  the  chair,  call  the  members  and  members  elect  to  order,  and  then  cause 
the  secretaiy  to  call  over  the  senatorial  districts,  in  their  order,  from  which 
members  have  been  elected  at  the  preceding  election,  and  as  the  same  are  called 
the  members  elect  must  present  their  certificates,  take  the  constitutional  oath 
of  office,  and  assume  their  seats.  The  senate  may  thereupon,  if  a  quorum  is 
present,  proceed  to  elect  its  officers. 

239.  Assembly,  organization  of. 

Sec.  239.  At  the  time  sj)ecified  in  section  two  hundred  and  thirty-eight,  the 
clerk  of  the  assembly,  or  in  case  of  his  absence  or  inability,  then  the  senior 
member  elect  jDresent,  must  take  the  chair,  call  the  members  elect  to  order,  and 
then  call  over  the  roll  of  counties  in  alphabetical  order;  and  as  the  same  are 
called  the  members  elect  must  present  their  certificates,  take  the  constitutional 
oath  of  office,  and  assume  their  seats.  The  assembly  may  thereupon,  if  a  quo- 
rum is  present,  proceed  to  elect  its  officers. 

240.  Oath  to  be  entered  on  journal. 

Sec.  240.  An  entry  of  the  oath  taken  by  members  of  the  legislature  must  be 
made  on  the  journals  of  the  proper  house. 

AKTICLE  III. 

NUMBER,    DESIGNATION,    ELECTION,    AND    APPOINTMENT    OF    OFFICERS    AND    EMPLOYEES    OF 

THE    LEGISLATURE. 

245.   Officers  of  senate. 

Sec.  245.  The  officers  and  employees  of  the  senate  consist  of  a  president, 

Francisco,  twelve;  in  the  county  of  San  Mateo,  one;  county  of  Nevada,  four;  in  the  county  of  Sierra,  two; 

in  the  county  of  Alameda,  two;  in  the  county  of  Contra  in  the  county  of  Yuba,  three;  in  the  county  of  Sutter, 

Costa,  oiif-;  in  the  county  of  Marin,  one;  in  the  county  one;  in  the  county  of  Butte,  two;  in  the  counties  of 

of  San  .Joiiquin,  two;  in  the  counties  of  Tuolumne,  Plumas  and  Lassen,  one;  in  the  counties  of  Tehama 

^lono,  and   Inyo,  three;   in  the  county  of  Calaveriis,  and  Cohisa,  one;  in  the  county  of  Shasta,  one;  in  the 

three;  in  tlie  counties  of  Amador  and  Alpiije,  two;  in  county  of  Trinity,  one;  in  the  county  of  Humboldt, 

the  county  of  El  Dorado,  four;  in  the  county  of  Sacra-  one;  in  the  counties  of  Klamath  and  Del  Norte,  one; 

iiiento.  five;  in  tlie  county  of  Solano,  one;  in  the  county  in  tlae  county  of  Siskiyou,  two. 

of  Yolo,  one;  in  the  counties  of  Napa  and  Lake,  one;  (a)  The  original  section  had  the  word  "j)rimary" 

in  the  county  of  Mendocino,  one;    in  tlie   county  of  instead  of  "  prima  facie." 
Sonoma,  three;  in  the  county  of  Placer,  three;  in  the 

102 


.     PUBLIC  OFFICEKS.  245-249 

president  pi'o  tern,  one  secretary,  two  assistant  secretaries,  one  sergeant-at- 
arms,  one  assistant  sergeant-at-arms,  one  minute  clerk,  one  journal  clerk,  one 
enrolling  clerk,  one  engrossing  clerk,  three  pages,  three  porters,  and  one  post- 
master, who,  without  additional  compensation,  shall  be  paper  folder.  [Amend- 
ment,  approved  March  31,  1876;  Amendmerds,  1875-G,  8;  took  effect  sixtielli  day 
after  passage }^^ 

246.  Officers  of  assembly. 

Sec.  246.  The  officers  and  employees  of  the  assembly  consist  of  a  speaker, 
speaker  pro  tern,  one  chief  clerk,  two  assistant  clerks,  one  sergeant-at-arms, 
one  assistant  sergeant-at-arms,  one  minute  clerk,  one  journal  clerk,  one  enroll- 
ing clerk,  one  engrossing  clerk,  four  porters,  four  pages,  and  one  postmaster, 
who,  without  additional  compensation,  shall  be  paper  folder.  [Amendment, 
approved  March  31,  1876;  Amendments  1875-6,  8;  took  effect  sixtieth  day  after 
passage  S"^ 

247.  Hoio  elected. 

Sec.  247.  All  officers  and  employees  of  the  legislature,  except  the  president 
of  the  senate,  porters  and  pages,  must  be  elected  b}'  the  house  to  which  such 
officers  and  employees  are  attached.  The  porters  and  pages  shall  be  appointed 
by  the  presiding  officers  of  their  respective  houses.  [Amendment,  approved 
March  31,  1876;  Amendments  1875-6,  8;  took  effect  sixtieth  day  after  passage. '^^^ 

248.  Engrossing  and  enrolling  clerks  and  assistants. 

Sec.  248.  The  engrossing  clerks  and  enrolling  clerks  of  the  senate  and  assem- 
bly' shall  have  no  power  to  appoint  any  assistants  at  a  per  diem,  but  shall  have 
exclusive  control  of  all  engrossing  and  enrolling  that  may  come  into  their 
respective  offices,  and  shall  be  required  to  report  all  bills  back  within  forty- 
eight  hours  after  their  recej^tion,  unless  further  time  be  granted.  Should  the 
amount  of  work  in  either  of  the  above-named  offices  accumulate  so  that  the 
clerk  cannot  complete  the  same  within  the  time  si^ecified,  then  the  engrossing 
or  enrolling  clerk  may  employ  such  assistance  as  may  be  necessary  to  complete 
the  work  within  the  time  specified  in  this  act.  [New  section,  approved  March  31, 
1876;  Amendments  1875-6,  8;  took  effect  sixtieth  day  after  passage. 

249.  Pay  of  assistants. 

Sec.  249.  All  work  performed  by  assistants  in  the  engrossing  and  enrolling 
clerks'  offices,  shall  be  paid  for  out  of  the  contingent  fund  of  the  respective 
houses  in  which  the  work  is  performed,  as  follows:  For  work  performed  in  the 
engrossing  clerks'  office,  not  to  exceed  the  sum  of  fifteen  cents  per  folio  of  one 
hundred  words;  and  for  work  performed  in  the  enrolling  clerks'  offices,  not  to 
exceed  the  sum  of  twenty-five  cents  per  folio  of  one  hundred  words.  All  bills 
for  engrossing,  or  enrolling,  shall  be  made  out  by  the  clerk  and  presented,  at 
the  end  of  each  week,  to  the  committee  on  expenditures  and  accounts,  or  such 
other  committee  as  either  house  may  designate,  whose  duty  it  shall  be  to  audit 
and  certify  to  the  correctness  of  the  same.  Upon  this  certificate  the  controller 
shall  draw  his  warrant  in  favor  of  the  clerk  in  whose  office  the  w^ork  has  been 
done,  for  the  amount  performed  each  week,  and  the  clerk  shall  receive  and  pay 
the  same  to  his  assistants,  and  shall  become  personally  responsible  to  his  assist- 
ants for  their  pay,  and  to  their  respective  houses  for  all  bills  received  by  them, 
[New  section,  approved  March  31,  1876;  Amendments  1875-6,  9;  took  effect  six- 
tieth day  after  passage. 

(a)    The  original   section  iirovicled  also   for  "two  (h)   The   original    section   did  not  have  the  words 

copjiug  clerks"  and  for  "  one  post-office  page  and  one  "  porters  and  pages,"  nor  the  last  sentence  relating  to 

paper  folder."    It  did  not  have  the  words  "  who,  with-  their  appointment, 
out  additional  compensation,  shall  be  paper  folder." 

103 


252-261  POLITICAL  CODE. 

ARTICLE  IV. 

POWERS  AND  DUTIES  OF  THE  OFFICERS  AND  EMPLOYEES  OF  THE  LEGISLATURE. 

252.  What  officers  of,  may  administer  oaths. 

Sec.  252.  The  president  and  president  pro  tern  of  the  senate,  and  the  speaker 
and  sjDeaker  pro  tern  of  the  assembly,  may  administer  the  oath  of  office  to  any 
senator  or  assemblyman,  and  to  the  officers  of  their  respective  bodies.  The 
members  of  any  committee  may  administer  oaths  to  witnesses  in  any  matter 
tinder  examination. 

253.  Duties  of  secretary  and  clerk. 

Sec.  253.  The  secretary  of  the  senate  and  the  chief  clerk  of  the  assembly 
must  attend  each  day,  call  the  roll,  read  the  journal  and  bills,  and  superin- 
intend  all  copying  necessary  to  be  done  for  their  resi^ective  houses. 

254.  Duties  of  assista7it  secretary  and  assistant  clerk. 

Sec.  254.  The  assistant  secretaries  of  the  senate  and  the  assistant  clerks  of 
the  assembly  must  take  charge  of  all  bills,  petitions,  and  other  papers  pre- 
sented to  their  respective  houses,  file  and  enter  the  same  in  the  books  provided 
for  that  purpose,  and  j^erform  such  other  duties  as  may  be  directed  by  the  sec- 
retary of  the  senate  and  chief  clerk  of  the  assembly. 

255.  Dulles  of  minute  clerk. 

Sec  255.  The  minute  clerk  of  the  senate  and  the  minute  clerk  of  the  assem- 
bly must  keep  a  correct  record  of  the  jDroceedings  of  their  respective  houses. 

256.  Duties  of  journal  clerk  of  senate. 

Sec  256.  The  journal  clerk  of  the  senate  must  record  each  day's  proceedings 
in  the  journal,  from  which  they  must  be  read  by  the  secretary  each  day  of 
meeting,  and  then  be  authenticated  by  the  signature  of  the  president. 

257.  Duties  of  journal  clerk  of  assembly. 

Sec  257.  The  journal  clerk  of  the  assembly  must  record  each  daj^'s  proceed- 
ings in  the  journal,  from  which  they  must  be  read  by  the  clerk  each  day  of 
meeting,  and  then  be  authenticated  by  the  signature  of  the  speaker. 

258. 

[Sec  258^^^  was  repealed  by  act  approved  March  31, 1876;  Amendments  1875-6, 
9;  took  effect  sixtieth  day  after  passage.^ 

259.  Duties  of  sergeanfs-ai-arms. 

Sec  259.  The  sergeant-at-arms  of  the  senate,  and  the  sergeant-at-arms  of 
the  assembly,  must  give  a  general  supervision,  under  the  direction  of  their  pre- 
siding officers,  to  the  senate  and  assembly  chambers,  with  the  rooms  attached; 
attend  during  the  sittings  of  their  respective  bodies,  execute  their  commands 
and  all  process  issued  by  their  authority;  keep  an  account  for  pay  and  mileage 
of  members,  and  prepare  checks  for  the  same. 

260.  Duties  of  assistant  sergeants-at-arms. 

Sec  260.  The  assistant  sergeant-at-arms  of  each  house  must  perform  the 
duties  of  doorkeeper,  prohibit  all  persons,  except  members,  officers,  and  em- 
ployees, and  such  other  persons  as  may  have  the  privilege  of  the  floor  assigned 
them  by  the  rules  of  each  house,  from  entering  within  the  bar  of  the  house, 
unless  upon  invitation,  and  keep  order  in  the  halls  and  lobbies. 

261.  Duties  of  officers  at  close  of  session. 

Sec  261.  The  secretary  and  assistant  secretaries  of  the  senate,  and  chief 
clerk  and  assistant  clerks  of  the  assembly,  at  the  close  of  each  session  of  the 

la)  Eepealed  Bcction:  copying  for  the  ijrintcr  as  is  ordered  by  their  respec- 

Sec.  258.  The  copying  clerks  muBt  perform  such     tive  houses. 

104 


PUBLIC  OFFICERS.  261-274 

legislature,  must  mark,  label,  and  arrange  all  bills  and  papers  belonging  to 
the  archives  of  their  respective  houses,  and  deliver  them,  together  with  all  the 
books  of  both  houses,  to  the  secretary  of  state,  who  must  certify  to  the  recep- 
tion of  the  same. 

ARTICLE  V. 

COMPENSATION  OF  MEMBERS,  OFFICEES,  AND  EMPLOYEES  OF  THE   LEGISLATURE. 

266.  Per  diem  and  mileage  of  members. 

Sec.  266.  Members  of  the  legislature  receive  ten  dollars  per  day  during  the 
session  of  the  legislature,  and  three  dollars  for  every  twenty  miles  of  travel  to 
and  from  their  residences  to  the  place  of  holding  the  session. 

267.  Per  diem  and  mileage  of  presiding  officers. 

Sec.  267.  The  president  pro  tern,  of  the  senate,  and  speaker  and  sj^eaker  pro 
tern,  of  the  assembly,  each  receive  twelve  dollars  per  day  during  the  session  of 
the  legislature. 

268.  Compensation  of  other  officers  and  employees. 

Sec.  268.  There  must  be  paid  to  the  secretary,  assistant  secretaries,  minute, 
journal,  enrolling,  and  engrossing  clerks,  and  sergeant-at-arms  of  the  senate, 
the  chief  clerk,  assistant  clerks,  minute,  journal,  enrolling,  and  engrossing 
clerks,  and  sergeant-at-arms  of  the  assembly,  each  eight  dollars  per  day;  to  the 
assistant  sergeant-at-arms  of  the  senate  and  assembty,  each  six  dollars  per  day; 
to  the  porters  of  the  senate  and  assembly,  each  four  dollars  per  day;  to  each 
committee  clerk  appointed  by  authority  of  either  house,  five  dollars  per  day, 
except  the  clerks  of  the  judiciary  committees,  who  must  be  paid  eight  dollars 
per  day;  to  the  pages  and  postmasters  of  the  senate  and  assembly,  each  three 
dollars  per  day.  [Amendment,  approved  March  31,  1876;  Amendments  1875-6; 
took  effect  sixtieth  day  after  jMssage.'-^^ 

269.  Compensation  for  services  after  close  of  session. 

Sec.  269.  For  services  performed  under  the  provisions  of  section  261  of  this 
code,  each  of  the  officers  therein  named  receive  a  compensation  of  fifty  dollars. 

ARTICLE  VI. 

contesting  elections  fob  members  of  the  legislature. 

273.  Wlio  may  contest. 

Sec.  273.  The  right  of  any  person  declared  elected  to  a  seat  in  the  senate  or 
assembly  may  be  contested  by  any  qualified  voter  of  the  county  or  district  to 
be  represented  by  such  senator  or  assemblyman. 

274.  Statement  of  cause  of  contest  to  he  filed. 

Sec  274.  The  person  contesting  such  election  must,  within  twenty  days  after 
the  certificate  of  election  is  issued,  file  with  the  clerk  of  the  county,  or  one  of 
the  counties  in  which  the  alleged  cause  of  contest  originated,  a  statement  of  the 
grounds  of  contest,  verified  by  his  oath.  [Amendment,  approved  March  30,  1874; 
Amendments  1873-4,  4;  took  effect  July  6,  1874.^''> 

(a)  Original  section:  each  six  dollars  per  day;  to  the  porters  of  the  senate 
Sec.  268.  There  must  be  paid  to  the  secretaiy,  the  and  assembly,  each  four  dollars  per  day;  to  each  corn- 
assistant  secretaries,  journal  clerk,  and  minute  clerk  mittee  clerk,  appointed  by  authority  of  either  house, 
of  the  senate,  and  to  the  chief  clerk,  assistant  clerks,  five  dollars  per  day,  except  the  clerks  of  the  judiciary 
journal  clerk,  and  minute  clerk  of  the  assembly,  each  committees,  who  must  each  be  paid  eight  dollars  per 
the  sum  of  eight  dollars  per  day;  to  the  enrolling,  day;  to  the  pages,  post-oifice  pages,  postmasters,  and 
engrossing,  and  copying  clerks  of  the  senate  and  as-  paper  folders  of  the  senate  and  assembly,  each  three 
sembly,  each  eight  dollars  per  day;  to  the  sergeant-at-  dollars  per  day. 

arms  of  the  senate  and  to  the  sergeant-at-arms  of  the  (6)  The  original  section  had  the  words  "  of  the  dis- 
assembly, each  six  dollars  per  day;  to  the  assistant  trict  court"  after  the  word  "  clerk." 
sergeant-at-arms  of  the  senate  and  of  the  assembly, 

105 


275-282  POLITICAL  CODE. 

275.  Commissio7i  to  take  testimony. 

Sec.  275.  On  the  filing  of  such  statement,  the  clerk  must  issue  a  commission, 
directed  to  two  justices  of  the  peace  of  his  county,  to  meet  at  a  time  and  place 
specified  in  the  commission,  not  less  than  twenty  nor  more  than  thirty  days 
from  the  date  thereof,  for  the  purpose  of  taking  the  depositions  of  such  wit- 
nesses as  the  parties  to  the  contest  may  wish  to  examine. 

276.  Notice  to  person  interested,  by  ivhom  served. 

Sec.  276.  "Written  notice  of  such  contest,  specifying  the  time  and  place  of 
taking  depositions,  and  a  copj'  of  the  statement,  certified  by  the  clerk,  must  be 
delivered  to  the  person  whose  election  is  contested,  or  if  he  cannot  be  found, 
left  at  the  house  where  he  last  resided,  by  the  sheriff  of  the  county  in  which 
such  person  claims  his  residence,  within  ten  days  after  such  statement  is  filed. 

277.  Compelling  attendance  of  loiinesses. 

Sec.  277.  Either  of  the  justices  of  the  peace  have  power  to  issue  subpoenas 
for  witnesses,  at  the  request  of  either  party,  to  be  served  hj  the  sheriff  as  other 
subpoenas;  and  such  justices,  Avhen  met  at  the  time  and  j^lace  appointed  to 
take  such  depositions,  have  the  same  power  to  issue  attachments  aud  assess 
fines  against  witnesses  as  is  given  to  justices  of  the  peace  in  the  ti-ials  of  civil 
actions. 

278.  Testimony,  hoiv  taken. 

Sec.  278.  The  justices  must  meet  at  the  time  and  place  appointed,  and  take 
the  depositions  of  witnesses  produced  by  the  parties,  and  may  continue  the 
examination  from  day  to  day,  if  necessary.  When  the  examination  is  closed, 
they  must  seal  w^  the  dej)Ositions  taken  before  them,  together  with  the  commis- 
sion, and  transmit  the  same  by  mail  or  express  to  the  clerk  with  whom  the 
statement  was  filed. 

279.  Vacancy  in  commission,  lioxo  filled. 

Sec  279.  If  at  any  time  either  of  the  just'ces  is  unable  to  j)roceed  in  such 
examination,  the  clerk  may  sui^ply  the  vacancy  by  designating  any  other  justice 
of  the  peace  of  the  county. 

280.  Fees  of  officers. 

Sec.  280.  Officers  performing  seiTices  in  a  contested  election  case  may  chai'ge 
and  collect  from  the  party  at  whose  instance  such  services  were  performed  the 
same  fees  as  are  allowed  them  for  similar  services  in  civil  cases. 

281.  Testimony  to  he  transmitted  to  secretary  of  state. 

Sec.  281.  The  clerk  must  seal  up  the  depositions,  the  original  statement,  the 
copy  of  the  notice  served  upon  the  party  whose  right  is  contested,  and  th& 
commission  issued  to  the  justices  of  the  peace,  and  transmit  the  same  by  mail 
to  the  secretary  of  state,  indorsing  thereon  the  names  of  the  contesting  parties 
and  the  branch  of  the  legislature  before  which  such  contest  is  to  be  tried.  The 
secretary  of  state  must  deliver  the  same,  unopened,  to  the  presiding  officer  of  the 
house  in  which  such  contest  is  to  be  tried,  on  or  before  the  second  day  of  the 
session  of  the  legislature  next  after  taking  such  dej)ositions,  and  such  presiding 
ofiicer  must  immediately  give  notice  to  the  house  that  such  papers  are  in  his 
possession. 

282.  Depositions. 

Sec.  282.  At  any  time  after  notice  of  contest  has  been  given,  and  before 
the  trial  thereof  before  the  proper  branch  of  the  legislature,  either  party  may 
take  depositions,  to  be  read  on  the  trial,  in  like  manner  and  under  the  same 
rules  as  are  allowed  and  required  in  the  cases  of  depositions  to  be  read  on  the 
trial  of  civil  actions;  and  such  depositions  when  taken,  must  be  sealed  up  by 
the  officer  taking  the  same,  and  directed  to  the  secretary  of  state,  who  must 

lUC 


PUBLIC  OFFICEKS.  282-295 

keej?  the  same,  unopened,  and  deliver  tliem  to  the  presiding  officer  of  the  house 
in  which  the  contest  is  to  be  tried. 

283.  Further  evidence  may  he  taken. 

Sec.  283.  The  house  before  which  the  contest  is  pending-  may  take  such 
other  evidence  in  the  case  as  it  deems  material. 


ARTICLE  VII. 

CONTESTING   THE    ELECTION    FOR    GOVERNOR    OR   LIEUTENANT-GOVERNOR, 

288.  Who  may  contest. 

Sec  288.  Any  elector  of  the  state  may  contest  the  election  of  any  person 
declared  elected  governor  or  lieutenant-governor  of  the  State  of  California. 

289.  Grounds  of  contest  to  he  stated  in  petition. 

Sec  289.  Such  elector  may,  within  twenty  days  after  the  declaration  of  the 
result  of  the  election,  deliver  to  the  2:)residing  officer  of  each  house  of  the  legis- 
lature a  verified  specification  of  the  grounds  of  contest. 

290.  Notice  to  respondent. 

Sec  290.  As  soon  as  the  presiding  officers  have  received  the  specifications 
they  must  make  out  a  notice,  in  writing,  directed  to  the  person  whose  election 
is  contested,  and  deliver  the  same  to  a  sergeant-at-arms,  who  must  serve  such 
notice  at  once  on  the  jjerson  therein  named. 

291.  Notice  to  houses. 

Sec  291.  The  presiding  officers  must  also  immediately  give  notice  to  their 
resj)ective  houses  that  such  specifications  have  been  received. 

292.  Trial  committee,  how  chosen. 

Sec  292.  Each  house  must  at  once  choose  seven  members  of  its  own  body, 
in  the  following  manner: 

1.  The  names  of  the  members,  except  the  speaker  of  the  assembly,  written 
on  similar  paper  tickets,  must  be  placed  in  a  box; 

2.  The  secretary  of  the  senate,  in  the  presence  of  the  senate,  and  the  clerk 
of  the  assembly,  in  the  pi'esence  of  the  house,  must  draw  from  their  respective 
boxes  the  names  of  seven  members  of  each. 

293.  Notice  of  choice. 

Sec  293.  As  soon  as  the  names  are  drawn,  notice  of  the  names  of  members 
drawn  in  one  house  must  be  given  to  the  other,  and  the  names  of  the  fourteen 
members  drawn  must  be  entered  on  the  journals  of  each  house. 

294.  Poivers  of  committee. 

Sec  294.  The  members  thus  selected  constitute  a  committee  to  try  such 
contested  election,  and  for  that  purpose  must  hold  their  meetings  publicly  at 
the  seat  of  government  at  such  time  and  place  as  they  may  designate,  and  may 
adjourn  from  day  to  day,  or  to  a  day  certain,  until  such  trial  is  determined. 
They  have  power  to  send  for  persons  and  papers,  and  to  take  all  necessaiy 
means  to  procure  testimony,  extending  like  privileges  to  each  party  to  the  con- 
test. They  must  report  their  judgment  in  the  j^remises  to  both  houses  of  the 
legislature,  which  report  must  be  entered  upon  the  journals. 

295.  Judgment  of  committee. 

Sec  295.  The  judgment  of  the  committee  thus  reported  is  final  and  con- 
clusive. 


107 


300-309  POLITICAL  CODE. 


AETICLE  VIII. 

ATTENDANCE   AND  EXAMINATION  OF    WITNESSES  BEFOEE  THE  LEGISLATURE  AND  COMMITTEES 

•    THEREOF. 

300.  Subpcenas. 

Sec.  300.  A  subpoena  requiring;  the  attendance  of  any  witness  before  either 
house  of  the  legislature  or  a  committee  thereof  may  be  issued  by  the  presi- 
dent of  the  senate,  speaker  of  the  house,  or  the  chairman  of  any  committee  be- 
fore whom  the  attendance  of  the  witness  is  desired;  and  it  is  sufficient  if: 

1.  It  states  whether  the  proceeding  is  before  the  assembl}^  or  senate  or  a 
committee; 

2.  It  is  addressed  to  the  witness; 

3.  It  requires  the  attendance  of  such  witness  at  a  time  and  place  certain; 

4.  It  is  signed  by  the  president  of  the  senate,  speaker  of  the  assembly,  or 
chairman  of  a  committee. 

301.  Service  of  subpcenas. 

Sec.  301.  The  subpoena  may  be  served  by  any  person  who  might  be  a  witness 
in  the  matter,  and  his  affidavit  that  he  delivered  a  copy  to  the  witness,  is  evi- 
dence of  seiTice.  [Amendment,  cqyproved  March  30, 1874;  Amendments  1873-4,  4; 
took  effect  July  6,  1874.^"' 

302.  Contempt. 

Sec.  302.  If  any  witness  neglects  or  refuses  to  obey  such  subpoena,  or 
api^earing,  neglects  or  refuses  to  testify,  the  senate  or  assembly  may,  by  reso- 
lution entered  on  the  journal,  commit  him  for  contempt. 

303.  Compelling  attendance. 

Sec.  303.  Any  witness  neglecting  or  refusing  to  attend  in  obedience  to 
subiDoena  may  be  arrested  hj  the  sergeant-at-arms  and  brought  before  the 
senate  or  assembly.  The  only  warrant  or  authority  necessary  to  authorize  such 
arrest  is  a  copj'  of  a  resolution  of  the  senate  or  assembly,  signed  by  the  presi- 
dent of  the  senate  or  speaker  of  the  assembly,  and  countersigned  bj-  the 
secretaiy  or  clerk. 

304.  Witnesses  not  to  be  held  to  answer  criininally — Refusal  to  testify. 

Sec.  304.  No  i^erson  sworn  and  examined  before  either  house  of  the  legisla- 
ture, or  any  committee  thereof,  can  be  held  to  answer  criminally  or  be  subject 
to  any  2:»enalt3^  or  forfeiture  for  any  fact  or  act  touching  which  he  is  required  to 
testify;  nor  is  any  statement  made  or  paper  produced  byanj^such  witness  com- 
petent evidence  in  any  criminal  proceeding  against  such  witness;  nor  can  such 
witness  refuse  to  testify  to  any  fact  or  to  produce  an}''  paper  touching  which  he 
is  examined,  for  the  reason  that  his  testimony  or  the  production  of  such  paper 
may  tend  to  disgrace  him  or  render  him  infamous.  Nothing  in  this  section 
exempts  any  witness  from  prosecution  and  punishment  for  perjury  committed 
by  him  on  such  examination. 

ARTICLE  IX. 

enactment  of  STATUTES. 

309.  Bills  received  by  governor  to  be  indorsed  by  pjrivate  secretary. 

Sec  309.  Every  bill  must,  as  soon  as  delivered  to  the  governor,  be  indorsed 

as   follows:    "This   bill   was   received  by  the  governor  this day  of , 

eighteen ."     The  indorsement  must  be  signed  by  the  private  secretary  of 

the  governor. 

(a)  The  original  section  had  the  word  "  might"  instead  of  "  may." 

108 


PUBLIC  OFFICEES.  310-325 

810.  Approval  of  bills. 

Sec.  310.  When  the  governor  approves  a  bill  he  must  set  his  name  thereto, 
with  the  date  of  his  approval. 

311.  Bills  returned  tvithout  appiroval. 

Sec.  311.  When  a  bill  has  passed  both  houses  of  the  legislature  and  is 
returned  by  the  governor  without  his  signature  and  with  objections  thereto,  and 
upon  a  reconsideration  jDasses  both  houses  by  the  constitutional  majority,  it 
must  be  authenticated  as  having  become  a  law  by  a  certificate  indorsed  thereon 
or  attached  thereto  in  the  following  form:  "  This  bill  having  been  returned  by 
the  governor  with  his   objections  thereto,   and   after   reconsideration  having 

passed  both  houses  by  the  constitutional  majority,  it  has  become  a  law  this 

day  of ,  A.  D. ,"   which  indorsement,   signed  by  the  president  of   the 

senate  and  speaker  of  the  assembly,  is  a  sufficient  authentication  thereof.  Such 
bill  must  then  be  delivered  to  the  governor  and  by  him  must  be  deposited  with 
the  laws  in  the  office  of  the  secretary  of  state. 

312.  Return,  when  house  not  in  session. 

Sec.  312.  If,  on  the  day  the  governor  desires  to  return  a  bill  without  his  ap- 
proval, and  with  his  objections  thereto  to  the  house  in  which  it  originated,  that 
house  has  adjourned  for  the  day  (but  not  for  the  session),  he  may  deliver  the 
bill  with  his  message  to  the  presiding  officer,  secretary,  clerk,  or  any  member 
of  such  house,  and  such  delivery  is  as  effectual  as  though  returned  in  open 
session,  if  the  governor,  on  the  first  day  the  house  is  again  in  session  by  message 
notifies  it  of  such  delivery,  and  of  the  time  when,  and  the  person  to  whom  such 
delivery  was  made. 

313.  Bills  remaining  with  governor  more  than  ten  days. 

Sec  313.  Every  bill  which  has  passed  both  houses  of  the  legislature,  and  has 
not  been  returned  by  the  governor  within  ten  days,  thereby  becoming  a  law,  is 
authenticated  by  the  governor  causing  the  fact  to  be  certified  thereon  by  the 
secretary  of  state  in  the  following  form:  "This  bill  having  remained  with  the 
governor  ten  days  (Sundays  excepted),  and  the  legislature  being  in  session,  it 

has  become  a  law  this day  of ,  a.  d. ,"  which  certificate  must  be 

signed  by  the  secretarj^  of  state,  and  deposited  with  the  laws  in  his  office. 

AKTICLE  X. 

PROMULGATION    OF    STATUTES. 

318.  Publication  and  distribution  of  statutes . 

Sec.  318.  The  publication  and  distribution  of  statutes  is  provided  for  in 
Chapter  III,  Title  I,  Part  III,  of  this  Code.     [See  post,  409  and  526-537.] 

ARTICLE  XI. 

OPERATION    OF    STATUTES. 

323.  When  statutes  take  effect. 

Sec.  323.  Eveiy  statute,  unless  a  different  time  is  prescribed  therein,  takes 
effect  on  the  sixtieth  day  after  its  passage. 

324.  When  joint  resolutions  take  effect. 

Sec.  324.  Every  joint  resolution,  unless  a  different  time  is  prescribed  therein, 
takes  effect  from  its  passage. 

325.  Effect  of  amendment. 

Sec  325.  Where  a  section  or  part  of  a  statute  is  amended,  it  is  not  to  be  con- 
sidered as  having  been  repealed  and  re-enacted  in  the  amended  form;  but  the 

lO'J 


325-334  POLITICAL  CODE. 

portions  which  are  not  altered  are  to  Le  considered  as  having  been  the  law 
from  the  time  when  they  were  enacted,  and  the  new  provisions  are  to  be  con- 
sidered as  having  been  enacted  at  the  time  of  the  amendment. 

326.  Construction  of  statutes. 

Sec.  326.  The  general  rules  for  the  construction  of  statutes  are  contained  in 
the  preliminary  provisions  of  the  different  codes. 

327.  Repeal  of  statutes. 

Sec.  327,  Any  statute  may  be  repealed  at  any  time,  except  when  it  is  other- 
wise provided  therein.  Persons  acting  imder  any  statute  are  deemed  to  have 
acted  in  contemplation  of  this  power  of  repeal. 

328.  Act  repealed  not  revived  by  repeal  of  repealing  act. 

Sec  328.  No  act  or  part  of  an  act,  rejiealed  by  another  act  of  the  legislatvire, 
is  revived  by  the  repeal  of  the  repealing  act  without  express  words  reviving  such 
repealed  act  or  part  of  an  act. 

329.  Repeal  of  laics  creating  criminal  offenses,  effect  of. 

Sec.  329.  The  repeal  of  any  law  creating  a  criminal  offense  does  not  constitute 
a  bar  to  the  indictment  and  punishment  of  an  act  already  committed  in  violation 
of  the  law  so  repealed,  unless  the  intention  to  bar  such  indictment  and  punish- 
ment is  expressl}'  declared  in  the  repealing  act. 

330.  Amendatory  act,  ivhen  void. 

Sec.  330.  An  act  amending  a  section  of  an  act  repealed  is  void. 

AKTICLE  XII. 

PUBLIC  REPORTS. 

332.  When  state  officers,  etc.,  are  to  report. 

Sec.  332.  All  officers,  boards  of  officers,  commissioners,  trustees,  regents,  and 
directors,  required  by  law  to  make  reports  to  the  governor  or  legislature,  except 
the  controller  of  state,  must  send  such  reports  to  the  governor  before  the  first 
day  of  August,  in  the  year  eighteen  hundred  and  seventy-three,  and  in  every 
second  year  thereafter. 

333.  Reports,  printing  of. 

Sec.  333.  The  superintendent  of  state  printing  must  j^rint  such  reports  before 
the  last  Monday  in  November  next  after  the  receijit  thereof.  [Amendment,  ap- 
ptroved  March  11,  187G;  Amendments  1875-6,  9;  took  efeci  sixtieth  day  after 
passage.^"'' 

334.  Number  to  be  printed. 

Sec  334.   There  must  be  printed: 

Of  the  report  of  the  secretary  of  state,  twelve  hundred  copies; 

Of  the  report  of  the  controller  of  state,  two  thousand  copies; 

Of  the  report  of  the  state  treasurer,  two  hundred  and  fifty  coj^ies; 

Of  the  report  of  the  surveyor-general,  two  thousand  five  hundred  copies; 

Of  the  report  of  the  superintendent  of  public  instruction,  four  thousand  five 
hundred  copies; 

Of  the  report  of  the  attorney-general,  one  thousand  copies; 

Of  the  report  of  the  adjutant-general,  six  hundred  copies; 

Of  the  report  of  the  state  librarian,  six  hundred  copies; 

Of  the  report  of  the  fish  commissioners,  twelve  hundred  cojjies; 

Of  the  report  of  the  directors,  resident  physician,  visiting  physicians  of  the 
insane  asylum,  eighteen  hundred  copies; 

(a)  The  original  section  had  the  words  "  state  printer  "  instead  of  "  superintendent  of  state  printing." 

110 


PUBLIC  OFFICERS.  334-335 

Of  the  report  of  the  directors  of  the  state  prison,  eighteen  hundred  copies; 

Of  the  report  of  the  insurance  conjniissioner,  eight  hundred  copies; 

Of  the  report  of  the  state  board  of  harbor  comniissioners,  twelve  hundred 
copies; 

Of  the  report  of  the  regents  of  the  university,  twelve  hundred  copies; 

Of  the  report  of  the  trustees  of  the  asylum  for  the  deaf,  dumb,  and  blind, 
eight  hundred  copies; 

Of  the  report  of  the  state  board  of  equalization,  two  thousand  copies; 

Of  the  report  of  the  state  board  of  health,  one  thousand  copies; 

Of  the  report  of  the  state  agricultural  society,  one  thousand  copies; 

Of  the  report  of  the  commissioners  to  manage  the  Yosemite  Valley  and  Mari- 
posa big  tree  grove,  five  hundred  copies.  [Amendment,  approved  March  11, 
1876;  Amendments  1875-6,  9;  took  effect  sixtieth  day  after  passage}^^ 

335.  Distribution  of  reports. 

Sec.  335.  The  reports  must  be  delivered  by  the  superintendent  of  state  print- 
ing as  follows : 

To  the  governor,  fifty  copies  of  each  report; 

To  the  state  librarian,  ten  copies  of  each  report; 

To  the  secretary  of  state,  thirty  copies  of  each  report; 

To  the  superintendent  of  public  instruction,  two  thousand  copies  of  his  re- 
port, for  distribution  to  school  trustees  and  teachers,  and  for  exchange  with 
other  states; 

To  the  surveyor-general,  one  thousand  copies  of  his  report,  for  distribution  to 
the  county  surveyors,  assessors,  and  county  clerhs  of  the  several  counties,  and 
for  exchange  with  other  states; 

To  the  adjutant-general,  two  hundred  and  fifty  copies  of  his  report,  to  be 
distributed  at  his  discretion; 

To  the  attorney-general,  one  hundred  copies  of  his  report,  for  distribution 
to  the  several  district  attorneys  of  the  state ; 

To  the  controller,  two  hundred  cojiies  of  his  report; 

To  the  secretary  of  state,  two  hundred  copies  of  his  report; 

To  the  state  treasurer,  one  hundred  cojDies  of  his  report; 

To  the  state  librarian,  one  hundred  and  fifty  copies  of  his  report; 

To  the  officers  of  each  of  the  insane  asylums,  tw^o  hundred  copies  of  their  report; 

To  the  directors  of  the  state  prison,  one  hundred  copies  of  their  report; 

To  the  insurance  commissioner,  one  hundred  copies  of  his  report; 

To  the  regents  of  the  university,  two  hundred  coj)ies  of  their  report; 

To  the  trustees  of  the  asylum  for  the  deaf,  dumb,  and  blind,  three  hundred 
copies  of  their  report; 

To  the  fish  commissioners,  two  hundred  copies  of  their  report; 

To  the  state  board  of  health,  two  hundred  copies  of  their  report; 

To  the  officers  of  the  state  agricultural  society,  two  hundred  copies  of  their 
report; 

To  the  commissioners  to  manage  the  Yosemite  valley  and  the  Mariposa  big 
tree  grove,  one  hundred  copies  of  their  rej^ort. 

And  the  remaining  copies  thereof :  one  third  to  the  order  of  the  sergeant-at- 
arms  of  the  senate,  and  two  thirds  to  the  order  of  the  sergeant-at-arms  of  the 
assembly,  to  be  by  them  distributed  pro  rata  to  the  members  of  the  senate  and 
assembly  next  to  convene. 

(a)  The  original  section  provided  for  the  following  missioners,  1200;  state  board  of  harbor  commissioners, 

nuTubersofreiDorts:  secretary  of  state,  1200;  controller,  1200;  regents   of  university,   2400;    state   agricnltural 

2G40;  treasurer,  2160;  surveyor-general,  52b0;   superin-  society,  I'iOO;  deaf,  dumb,  and  blind  asylum,  1200;  state 

tendent  of  public  instruction,  5280;  attorney-general,  board  of  health,  2400:  insurance  commissioner,  1000. 

120ii;  adjutant-general,  12(0;  state  librarian,  I'JdO;  fish  It  was  previously  amended  by  act  of  March  30.  1874: 

commissioners,  1200;  insane  asylum,  2400;  state  prison,  Amendments  1873-4,  4,  so  as  to  omit  the  provision  re- 

2400;  state  board  of  equalization,  2400 ;  capitol  com-  specting  the  report  of  the  insxxrance  commissioner. 

Ill 


335-341  POLITICAL  CODE. 

No  report  must  contain  more  than  one  hundred  pages  of  printed  matter, 
except  the  report  of  the  controller  of  state.  [Ameridment,  approved  March  11, 
1876;  Amendments  1875-6,  11;  took  effect  sixtieth  day  after  passage .'^"^ 

336.  To  be  printed  in  English. 

Sec.  336.  All  rejiorts  must  he  printed  in  the  English  language. 

337.  Report  of  insurance  commissioner  to  be  printed  and  distributed. 

Sec.  337.  Of  the  report  of  the  insurance  commissioner,  the  commissioner 
must  have  printed,  at  the  expense  of  his  office,  one  thousand  copies,  and  must 
deliver  of  the  same  as  follows: 

To  the  governor,  twenty  copies; 

To  the  state  libraiian,  ten  coj)ies; 

To  the  secretary  of  state,  thirty  copies; 

To  the  sergeant-at-arms  of  the  senate,  eighty  copies; 

To  the  sergeaut-at-arms  of  the  assembly,  one  hundred  and  sixty  copies; 

And  the  residue  must  he  distributed  by  the  commissioner  in  furtherance  of 
the  interest  of  insurance.  [Neiv  section,  approved  March  30,  1874;  Amendments 
1873-4,  7;  took  effect  July  6,  1874. 


CHAPTEE  III. 

EXECUTIVE    OFFICERS. 

Article  I.  Classification,  Number,  and  Designation  of  Executive  Officers...    341 

II.  Mode  of  Ei,ection  or  Appointment,  and  term  op  Civil  Executive  Ofj;'icer3  348 

III.  Governor 380 

IV.  Lieutenant-Governor 396 

V.  Secretary  of  State 407 

VI.  Controller 433 

VII.  Treasurer 452 

VIII.  Attorney-General 470 

IX.  Surveyor-General 483 

X.  Kegister  of  the  State  Land  Office ,    497 

XI.  Superintendent  of  Public  Instruction 512 

XII.  State  Printer 52fi 

XIII.  State  Geologist 548 

XIV.  Sealer  of  Weights  and  Measures 561 

XV.  Inspector  of  Gas  Meters 577 

XVI.  Insurance  Commissioner 594 

XVII.  Fish  Commissioners 642 

XVIII.  Board  of  Examiners 654 

XIX.  Other  Executive  Officers 695 


ARTICLE  I. 

CLASSIFICATION,    NIJMBEB,    AND    DESIGNATION    OF    EXECUTIVE    OFFICERS. 

341.   Classification  of  executive  officers. 
Sec.  341.  Executive  officers  are  either: 

1.  Civil;  or, 

2.  Military. 

(o)  The  original  section  had  the  words  "  state  print-  ies  of  their  report;  the  state  board  of  equalization  200 
er  "  instead  of  "  superintendent  of  state  printing,"  and  copies  of  tlicir  nport.  and  oniitti^d  the  coinniissioners 
did  not  have  the  last  senteni-i-  coiiuiicijciuK  with  the  of  the  Ydseniitf  Valley  and  MarilJUHa  hit;  tree  j^rove. 
words  "  no  report  must  contain."  It  difTena  from  the  It  was  privicMisly  an'icndcd  bv  act  of  March  30,  1874; 
aniendni'ut  in  the  text  by  providing;  that  the  superin-  Aniendnicnts  1873-4, 5,  so  as  to  give  to  tin;  state  treasiirer 
timdent  of  jinblii-  instniction  Khonld  liave  2500  copies  instead  of  the  state  librarian  10  copies  of  each  report 
of  his  report;  the  adjutant-Kcneral  500  copies  of  liis  and  to  omit  any  xjrovision  for  the  insurance  commis- 
report;  the  state  librarian  200  copies  of  his  report;  the  sioner.  In  other  respects  that  amendment  was  sub- 
trustees  of  the  deaf,  dumb,  and  blind  asylum  500  coiJ-  stantlally  the  same  as  the  original  section. 

112 


PUBLIC  OFFICEES.  342-343 

342.  Military  officers. 

Sec.  342.  Military  officers  are  designated  and  their  duties  prescribed  in  Title 
IV  of  Part  III  of  this  Code.     [See  post,  1895-2117.] 

343.  Designation  and  number  of  civil  executive  officers. 

Sec.  343.  The  number  and  designation  of  the  civil  executive  officers  are  as 
follows : 

A  governor; 

A  private  secretary  for  the  governor; 

An  executive  clerk  for  the  governor; 

A  lieutenant-governor; 

A  secretary  of  state; 

A  deputy  secretary  of  state; 

A  clerk  for  the  secretary  of  state; 

Two  recording  clerks  for  the  secretary  of  state; 

A  general  clerk  for  the  secretary  of  state; 

Two  special  clerks  for  the  secretary  of  state; 

A  controller; 

A  deputy  controller; 

A  bookkeeper  for  the  controller; 

Five  clerks  for  the  controller. 

A  treasurer; 

Two  clerks  for  the  treasurer; 

An  attorney-general; 

A  clerk  for  the  attorney-general; 

A  surveyor-general; 

A  deputy  surveyor-general; 

Three  clerks  for  the  surveyor-general; 

A  register  of  the  state  laud  office; 

A  deputy  register  of  the  state  land  office; 

Two  clerks  for  the  register; 

A  superintendent  of  public  instruction; 

A  deputy  for  the  superintendent  of  public  instruction; 

A  clerk  for  the  superintendent  of  public  instruction; 

A  state  printer; 

[The  office  of  state  printer  was  abolished  and  that  of  "superintendent  of 
state  printing"  created  by  act  of  March  26,  1872;  1871-2,  554.    See  post,  526.] 

A  state  geologist; 

A  state  sealer  of  weights  and  measures; 

An  inspector  of  gas  meters; 

A  vaccine  agent; 

A  commissioner  of  immigration; 

An  insurance  commissioner; 

A  deputy  for  the  insurance  commissioner; 

Three  state  capitol  commissioners; 

Three  tide  land  commissioners; 

Three  members  of  the  state  board  of  tide  land  commissioners; 

[The  state  board  of  tide  land  commissioners  was  abolished  by  act  of  February 
4,  1876;  see  post,  365.] 

Four  port  wardens  for  the  port  of  San  Francisco; 
A  port  warden  for  each  port  of  entry  except  San  Francisco; 
Three  state  harbor  commissioners; 
Three  harbor  commissioners  for  the  port  of  Eureka; 

Six  pilots  for  each  harbor  where  there  is  no  board  of  pilot  commissioners; 
8  .  113 


343-351  POLITICAL  CODE. 

Three  members  of  the  marine  board  for  the  port  of  San  Francisco; 

[The  marine  board  was  abolished  by  act  of  December  22,  1875.    See  j^ost, 
2583.] 

Three  members  of  tlie  board  of  pilot  commissioners  for  the  ports  of  San 
Francisco,  Mare  Island,  and  Benicia. 

Three  members  of  the  board  of  pilot  commissioners  for  Humboldt  bay  and 
bar ; 

Three  fish  commissioners; 

Five  members  of  the  board  of  health  of  San  Francisco; 

Five  members  of  the  board  of  health  of  Sacramento; 

Seven  members  of  the  state  board  of  health; 

A  president  and  nine  directors  of  the  state  board  of  agriculture; 

Three  members  of  the  state  board  of  equalization; 

Twenty-two  regents  of  the  university  of  California; 

Ten  members  of  the  state  board  of  education; 

Seven  trustees  of  the  state  normal  school; 

Five  trustees  of  the  state  library; 

A  state  librarian; 

Two  deputy  state  librarians; 

A  librarian  of  the  supreme  court  library; 

Three  directors  of  the  state  prison; 

Five  directors  of  the  insane  asylum; 

A  medical  superintendent  of  the  insane  asylum; 

Three  assistant  physicians  of  the  insane  asylum; 

A  treasurer  of  the  insane  asylum; 

Five  trustees  of  the  asylum  for  the  deaf,  dumb,  and  blind; 

Three  trustees  of  the  state  burying  grounds; 

Kine  commissioners  of  the  Yosemite  valley  and  Mariposa  big  tree  grove; 

Three  members  of  the  board  of  examiners; 

A  clerk  for  the  board  of  examiners; 

Such  other  officers  as  fill  offices  created  by  or  under  the  authority  of  the  gen- 
eral laws  for  the  government  of  counties,  cities,  and  towns,  or  of  the  charters 
or  special  laws  resj^ecting  the  same,  or  of  the  health,  school,  election,  road,  or 
revenue  laws. 

AKTICLE  II. 

THE    MODE    OF    ELECTION    OR     APPOINTMENT     AND     TERM     OF     OFFICE    OF    CIVIL    EXECUTIVE 

OFFICERS. 

348.  Cciiain  officers  elected. 

Sec  348.  The  mode  of  election  of  the  governor,  lieutenant-governor,  secre- 
tary of  state,  controller,  treasurer,  attorney -general,  surveyor-general,  and  su- 
perintendent of  public  instruction  is  prescribed  by  the  constitution. 

349.  State  printer. 

Sec  319.  Tlie  state  printer  is  elected  at  the  same  time  as  the  state  officers 
mentioned  in  the  preceding  section,  and  holds  his  office  for  the  term  of  foui* 
years  from  the  first  Monday  in  December  next  succeeding  his  election. 

[The  office  of  state  printer  was  abolished  and  that  of  "  superintendent  of  state 
printin- "'  created  by  act  of  March  20,  1872;  1871-2,  554.     See  post,  52G.] 

350.  J.'iyisln-  of  land  office. 

Sec.  350.  The  surveyor-general  is  ex  officio  register  and  the  deputy  surveyor- 
general  is  ex-<jfficio  deputy  register  of  the  state  land  office. 

351.  Sl'ilc  sealer  of  v^eigldH  and  meaaares. 

Sec  351.  The  secretary  of    state  is  ex  officio    state    sealer  of   weights   and 

measures. 

114 


PUBLIC  OFFICEKS.  352-3G2 

352.  State  hoard  of  equalization. 

Sec.  352.  The  governor,  controller,  and  attorney-general  constitute  the  state 
board  of  equalization.  The  governor,  and  in  liis  absence  the  controller,  is  chair- 
man of  the  board.  [Amendment,  approved  April  1,  187G;  Amendments  1875-61, 
11;  took  effect  immediately ^^ 

353.  Regents  of  university. 

Sec.  353.  The  governor,  lieutenant-governor,  speaker  of  the  assembly' 
superintendent  of  public  instruction,  president  of  the  state  board  of  agricul- 
ture, and  jDresident  of  the  mechanics'  institute  of  San  Francisco,  are  ex  officio 
regents  of  the  university  of  California.  The  appointment  and  terms  of  office 
of  the  other  regents  are  provided  for  in  Chapter  I,  Title  III  of  Part  III  of 
this  Code.     [See  post,  1425.] 

354.  Trustees  of  state  normal  scliool. 

Sec.  354.  The  governor,  superintendent  of  public  instruction,  and  five 
trustees  apj^ointed  by  the  governor,  and  holding  their  offices  for  the  term  of 
ten  years,  constitute  the  board  of  ti'ustees  of  the  state  normal  school. 

355.  State  board  of  education. 

Sec.  355.  The  appointment  and  terms  of  office  of  the  members  of  the  state 
board  of  education  are  provided  for  in  Chapter  III,  Title  III  of  Part  III  of 
this  Code.     [See  post,  1517.] 

356.  Officers  of  libraries. 

Sec.  356.  The  trustees  of  the  state  library,  the  state  librarian,  the  deputy 
state  librarian,  and  librarian  of  the  supreme  court,  are  elected  and  appointed 
and  hold  their  offices  as  prescribed  in  Chapter  III,  Title  V  of  Part  III  of  this 
Code.     [See  post,  2292.] 

357.  Yosemite  and  Big  Tree  commissioners. 

Sec.  357.  The  commissioners  of  the  Yosemite  valley  and  Mariposa  big  tree 
grove  are  appointed  and  hold  their  offices  as  prescribed  in  Title  VIII  of  Part 
III  of  this  Code.     [See  post,  3584.] 
353.  Superintendent,  etc.,  of  the  insane  asylum. 

Sec.  358.  The  medical  superintendent,  assistant  physicians,  and  treasurer  of 
the  insane  asj'lum  are  elected,  appointed,  and  hold  their  offices  as  prescribed  in 
Chapter  I,  Title  V  of  Part  III  of  this  Code.     [See  post,  2150.] 

359.  Directors  of  state  hoard  of  agriculture. 

Sec.  359.  The  president  and  directors  of  the  state  board  of  agriculture  are 
elected  and  hold  their  offices  as  prescribed  in  the  sjDecial  statute  creating  the 
board.  • 

360.  San  Francisco  board  of  health. 

Sec.  360.  The  members  of  the  board  of  health  of  San  Francisco  are  ap- 
pointed and  hold  their  offices  as  jirescribed  in  Title  VII,  Part  III  of  this  Code. 
[See  post,  3004.] 

361.  Sacramento  hoard  of  health. 

Sec.  361.  The  members  of  the  board  of  health  of  Sacramento  are  appointed 
and  hold  their  offices  as  prescribed  in  Title  VII  of  Part  III  of  this  Code. 
[See  post,  3042.] 

362.  Harbor  commissioners. 

Sec.  362.  Harbor  commissioners  are  elected  and  aj)pointed  and  hold  their 
offices  as  prescribed  in  Title  VI  of  Part  III  of  this  Code.     [See  post,  2521.] 

(a)  Original  section:  appointed  by  the  governor,  and  hold  their  offices  at  his 

Sec.  352.  The  controller  is  ex  officio  a  member  of  the     i^leasiire. 
state  board  of  equalization.     The  other  members  are 

115 


363-370  POLITICAL  CODE. 

363.  I  Sec.  363''''  was  repealed  by  act  of  January  13,  1876;  Amendments  1875-6, 
14;  took  eft'ect  immediately.] 

364.  Board  of  eocrnnincrs. 

Sec.  364.  The  governor,  secretary  of  state,  and  attorney-general  constitute 
the  board  of  examiners. 

365.  State  board  of  tide  land  commissioners. 

Sec.  365'**^  was  repealed  by  the  following  act  of  rebruar}^4,  1876: 

An  Act  to  abolish  the  state  board  of  tide  land  commissioners  and  to  repeal  sections  three  hiiu- 
dred  and  sixty-five  and  six  hundred  and  ninety  eight  of  the  political  code. 
Approved  February  i,  1876;  Amendments,  1875-6,  15. 

Section  1.  The  State  board  of  tide  land  commissioners  is  hereby  abolished. 

Sec.  2.  All  books,  maps,  papers,  and  documents  belonging  to  the  archives  of 
said  board  and  all  other  property  of  the  state  under  its  custody  or  control 
must  be  deposited  with  and  kept  and  preserved  by  the  surveyor-general  of  the 
state. 

Sec.  3.   Sections  365  and  698  of  the  Political  Code  are  hereby  repealed. 

Sec.  4.  An  act  entitled  "  An  Act  supplementary  to  and  amendatory  of  'An 
Act  supplementary  to  and  amendatoiy  of  an  act  entitled  An  Act  to  survey  and 
dispose  of  certain  salt  marsh  and  tide  lands  belonging  to  the  State  of  Cali- 
fornia,'" approved  March  30,  1868;  also,  an  act  approved  April  1,  1870;  ap- 
proved March  30,  1874,  is  hereby  repealed. 

Sec.  5.  This  act  shall  take  efifect  and  be  in  force  from  and  after  its  passage. 

366.  State  capitol  commissioners. 

Sec.  366.  The  governor,  secretary  of  state,  and  treasurer,  constitute  the 
board  of  state  capitol  commissioners. 

367.  State  prison  directors. 

Sec.  367.  The  governor,  lieutenant-governor,  and  secretary  of  state  consti- 
tute the  board  of  state  prison  directors;  and  the  lieutenant-governor  is  warden 
of  the  state  prison. 

368.  Inspector  of  gas  meters,  etc. 

Sec.  368.  The  following  executive  officers  are  appointed  by  the  governor, 
with  the  consent  of  the  senate: 

1.  The  inspector  of  gas  meters;  the  trustees  of  the  State  burying  grounds. 

2.  The  directors  of  the  insane  asylum;  the  trustees  of  the  asylum  for  the 
deaf,  dumb,  and  blind;  the  port  wardens;  the  insurance  commissioner;  the  mem- 
bers of  the  state  board  of  health;  a  vaccine  agent. 

3.  The  commissioner  of  immigration;  the  pilot  commissioners;  the  pilots  for 
each  harbor  where  there  is  not  a  board  of  pilot  commissioners;  the  fish  com- 
missioners; the  state  geologist;  the  tide  land  commissioners. 

369.  Term  of  office  of  officers  mentioned  in  pireceding  section. 

Sec.  369.  The  officers  enumerated  in  the  first  subdivision  of  the  last  section 
hold  their  offices  for  the  term  of  two  years,  those  in  the  second  subdivision  for 
the  term  of  four  years,  and  those  in  the  third  subdivision  during  the  goveriior's 
])loasure. 

370.  Private  secretary  and  clrrk  of  governor. 

Sec.  370.  The  private  secretary  and  executive  clerk  of  the  governor  are  ap- 
pointed by  him,  and  hold  their  offices  at  his  pleasure. 

(o)  Repealed  paction:  {!>)  Repealed  section: 

Sec-.  3(;n.  Tbr-  iii<nib<  rs  of  tlip  marine  board  of  San  Si;c.  365.  The  t;overnor,  fiurvcyor-gcneral,  and   con- 

FranciBco  arc  a))i)oint((]  and  hold  their  officeB  as  pre-  troUer  constitute  the  state  board  of  tide  land  eommis- 

Bcribed  in  Title  VI  of  Part  III  of  this  code.  siouers. 

116 


PUBLIC  OFFICERS.  371-380 

371.  Deputiei^  and  clej-ks. 

Sec.  371.  All  deputies  and  clerks  named  in  tins  article,  whose  api^ointments 
and  terms  of  office  are  not  otherwise  provided  for,  are  appointed  by  and  hold 
office  at  the  pleasure  of  their  principals. 

ARTICLE  III. 

OF  THE  GOVERNOR. 

380.  Powers  and  duties  of  governor. 

Sec.  380.  In  addition  to  those  prescribed  by  the  constitution  the  governor  has 
the  power  and  must  jjei'form  the  duties  prescribed  in  this  and  the  following 
sections : 

1.  He  is  to  supervise  the  official  conduct  of  all  executive  and  ministerial 
officers; 

2.  He  is  to  see  that  all  offices  are  filled  and  the  duties  thereof  performed,  or 
in  default  thereof  apply  such  remedy  as  the  law  allows;  and  if  the  remedy  is 
imperfect,  acquaint  the  legislature  therewith  at  its  next  session; 

3.  He  is  to  make  the  appointments  and  supply  the  vacancies  mentioned  in 
this  code; 

4.  He  is  the  sole  official  organ  of  communication  between  the  government  of 
this  state  and  the  government  of  any  other  state  or  of  the  United  States; 

5.  AVhenever  any  suit  or  legal  proceeding  is  pending  against  this  state,  or 
which  may  afi^ect  the  title  of  this  state  to  any  property,  or  which  may  result  in 
any  claim  against  the  state,  he  may  direct  the  attorney-general  to  aj^i^ear  on 
behalf  of  the  state,  and  may  employ  such  additional  counsel  as  he  may  judge 
expedient; 

6.  He  may  require  the  attorney-general  or  district  attorney  of  any  county  to 
inquire  into  the  affairs  or  management  of  any  corporation  existing  under  the 
laws  of  this  state; 

7.  He  may  require  the  attorney -general  to  aid  any  district  attorney  in  the 
discharge  of  his  duties; 

8.  He  may  oifer  rewards  not  exceeding  one  thousand  dollars  each,  payable 
out  of  the  general  fund,  for  the  apprehension  of  any  convict  who  has  escaped 
from  the  state  prison,  or  of  any  person  who  has  committed  or  is  charged  with 
the  commission  of  an  offense  punishable  with  death; 

9.  He  must  perform  such  duties  respecting  fugitives  from  justice  as  are  pre- 
scribed by  Chapter  IV  of  Title  XII  of  The  Penai.  Code;     [See  post,  14,547.] 

10.  He  must  issue  and  transmit  election  proclamations,  as  prescribed  in  Title 
II  of  Part  III  of  this  Code;     [See  post,  1041.] 

11.  He  must  issue  land  warrants  and  patents,  as  prescribed  in  Title  VIII  of 
Part  III  of  this  Code;     [See  post,  3395.] 

12.  He  must,  on  or  before  the  first  day  of  September,  in  the  year  eighteen 
hundred  and  seventy-three,  and  in  each  second  year  thereafter,  deliver  to  the 
state  printer  for  publication  all  biennial  reports  of  officers  and  boards  for  the 
two  preceding  years; 

13.  He  may  require  any  officer  or  board  to  make  special  reports  to  him,  upon 
demand,  in  writing; 

14.  He  may  issue  arms  and  accoutrements  for  the  use  of  colleges; 

15.  He  must  discharge  the  duties  of  member  of  the  board  of  examiners,  of 
member  of  the  state  board  of  education,  of  state  prison  director,  of  state  capitol 
commissioner,  of  orphan  asylum  commissioner,  of  trvistee  of  state  normal 
school,  and  of  the  board  of  military  auditors; 

16.  He  has  such  other  powers,  and  must  perform  such  other  duties,  as  are 
devolved  U]3on  him  by  this  code  or  any  other  law^  of  this  state. 

117 


381-407  POLITICAL  CODE. 

381.  To  Iratismil  list  of  appoint  mentis  to  lecjidature. 

Sec.  381.  AVithiii  ten  days  after  the  meeting  of  the  legislature,  the  governor 
must  trausuiit  to  it  a  list  of  all  appointments  made  by  him  vmder  the  provisions 
of  Section  1000. 

382.  Records  in  office. 

Sec.  382.  The  governor  must  cause  to  be  kept  the  following  records: 

1.  A  register  of  all  applications  for  pardon  or  for  commutation  of  any  sen- 
tence, with  a  list  of  the  official  signatures  and  recommendations  in  favor  of 
each  application; 

2.  A  register  of  statements  in  capital  cases  made  to  him,  with  his  action 
thereon ; 

3.  An  account  of  all  his  official  expenses  and  disbursements,  including  the 
incidental  expenses  of  his  department,  and  of  all  rewards  offered  by  him  for 
the  apprehension  of  criminals  and  persons  charged  Avith  crime; 

4.  A  register  of  all  appointments  made  by  him,  with  date  of  commission, 
names  of  a})pointee  and  predecessor; 

5.  A  record  of  all  persons  confined  in  the  state  prison,'  showing  the  name  of 
the  convict,  his  age  and  general  ai3pearance,  w^hen  and  where  convicted,  and  of 
what  crime,  the  time  of  his  sentence,  and  when  such  time  expires. 

383.  Persians  aciiiig  o.v  governor. 

Sec.  383.  Every  provision  in  the  laws  of  this  state  in  relation  to  the  powers 
and  duties  of  the  governor,  and  in  relation  to  acts  and  duties  to  be  performed 
by  others  toAvard  him,  extends  to  the  persons  performing  for  the  time  being 
the  duties  of  governor. 

384.  Salary  of  governor. 

Sec  384.  The  annual  salar}'  of  the  governor  is  seven  thousand  dollars. 

385.  Salary  of  private  secretary. 

Sec.  385.  The  annual  salary  of  the  private  secretary  of  the  governor  is 
twenty-four  hundred  dollars. 

386.  Salary  of  clerk. 

Sec.  38G.  The  annual  salary  of  the  executive  clerk  is  twenty-four  hundred 
dollars. 

AETICLE  IV. 

lieutenant-governor. 

396.  Duties. 

Sec  39G.  In  addition  to  those  prescribed  by  the  constitution,  the  lieutenant- 
governor  shall  discharge  the  duties  and  exercise  the  powers  of  a  state  prison 
director. 

397.  Compensation. 

Sec  397.  The  lieutenant-governor  receives  a  salary  of  twelve  dollars  per 
day  during  the  session  of  tlie  legislature,  and  the  same  mileage  as  is  allowed  to 
senators. 

ARTICLE   V. 

OF    THE    SECRETARY    OF    STATE. 

407.   Custody  of  records. 

Sec.  407.  The  secretary  of  state  is  charged  with  the  custody: 

1.  Of  the  enrolled  copy  of  the  constitution: 

2.  Of  all  acts  and  resolutions  passed  by  the  legislature; 

3.  Of  the  journals  of  the  legislature; 

4.  Of  the  great  seal; 

118 


PUBLIC  OFFICERS.-  407-408 

5.  Of  all  books,  records,  deeds,  parchments,  maps,  and  papers,  kept  or 
dejjosited  in  his  office  pursuant  to  law. 

408.  Duties  of  secretary  of  state. 

Sec.  408.  In  addition  to  that  prescribed  by  the  constitution,  it  is  the  dut}'  of 
the  secretary  of  state: 

1.  To  attend  at  ever}'  session  of  the  legislature,  for  the  purjiose  of  receiving 
bills  and  resolutions  thereof,  and  to  perform  such  other  duties  as  may  be 
devolved  upon  him  by  resolution  of  the  two  houses,  or  either  of  them; 

2.  To  keep  a  register  of  and  attest  the  official  acts  of  the  governor; 

3.  To  affix  the  great  seal,  with  his  attestation,  to  commissions,  pardons,  and 
other  public  instruments  to  which  the  official  signature  of  the  governor  is 
required ; 

4.  To  record  in  proj^er  books  all  conveyances  made  to  the  state,  and  all 
articles  of  incorporation  filed  in  his  office; 

5.  To  receive  and  record  in  proper  books  the  official  bonds  of  all  the  officers 
whose  bonds  are  fixed  by  Part  III  of  this  Code,  and  then  to  deliver  the  originals 
to  the  state  treasurer. 

6.  To  record  in  a  proper  book  all  changes  of  names  certified  to  him  by  the 
county  clerks,  in  the  manner  in  which  such  record  is  now  made; 

7.  To  take  and  file  in  his  office  receij)ts  for  all  books  distributed  by  him,  and 
to  direct  the  county  clerk  of  each  county  to  do  the  same; 

8.  To  certify  to  the  governor  the  names  of  those  persons  who  have  received 
at  any  election  the  highest  number  of  votes  for  any  office  the  incumbent  of 
which  is  commissioned  by  the  governor; 

9.  To  furnish  on  demand  to  any  person  paying  the  fees  therefor  a  certified 
copy  of  all  or  any  part  of  any  law,  record,  or  other  instrument  filed,  deposited, 
or  recorded  in  his  office; 

10.  To  deliver  to  the  state  printer,  at  the  earliest  day  practicable  after  the 
final  adjournment  of  each  session  of  the  legislature,  copies  of  all  laws,  resolu- 
tions (with  marginal  notes),  and  journals,  kept,  passed,  or  adopted  at  such  ses- 
sion; to  superintend  the  printing  thereof,  and  have  proof  sheets  of  the  same 
compared  with  the  originals,  corrected,  and  indexed; 

11.  To  furnish  to  the  Spanish  translator  the  laws  and  resolutions  to  be  trans- 
lated into  Spanish; 

12.  To  notify,  in  writing,  the  district  attorney  of  the  proper  county  of  the 
failure  of  any  officer  in  his  county  to  file  in  his  office  the  sworn  statement  of 
fees  received  by  such  officer; 

13.  To  present  to  the  legislature,  at  the  commencement  of  each  session 
thereof,  a  full  account  of  all  purchases  made  and  expenses  incurred  by  him  in 
furnishing  fuel,  lights,  and  stationery; 

14.  To  keep  a  fee  book,  in  which  must  be  entered  all  fees,  commissions,  and 
compensation  of  whatever  nature  or  kind  by  him  earned,  collected,  or  charged, 
with  the  date,  name  of  payor,  paid  or  not  paid,  and  the  nature  of  the  service  in 
each  case,  which  book  must  be  verified  annually  by  his  affidavit  entered  therein; 

15.  To  file  in  his  office  descriptions  of  the  seals  in  use  by  the  difl:erent  state 
officers,  and  to  furnish  such  officers  with  new  seals  whenever  required; 

16.  To  discharge  the  duties  of  director  of  the  state  prison;  member  of  the 
state  board  of  examiners,  state  capitol  commissioner,  state  sealer  of  weights  and 
measures,  and  all  other  duties  required  of  him  by  law; 

17.  To  report  to  the  governor,  at  the  time  prescribed  in  section  332  of  this 
code,  a  detailed  account  of  all  his  official  actions  since  his  previous  report,  and 
accompany  the  report  with  a  detailed  statement,  under  oath,  of  the  manner  in 
Avhich  all  appropriations  for  his  office  have  been  exjoended. 

119 


409-413  POLITICAL  CODE. 

409.   Disti-ibution  of  statutes  and  journals. 

Sec.  409.  Immediately  after  the  laws,  resolutions,  and  journals  mentioned  in 
subdivision  9  of  the  preceding  section  are  bound,  the  secretary  of  state  must 
distribute  the  same  as  follows: 

1.  To  each  department  of  the  government  at  "Washington,  and  of  the  govern- 
ment of  this  state,  one  copy; 

2.  To  the  library  of  congress,  the  state  library,  and  to  the  supremo  court 
library,  two  copies  each; 

3.  To  each  of  the  states,  two  copies; 

4.  To  each  of  our  members  of  congress,  and  to  each  of  the  United  States 
district  judges,  judges  of  the  supreme,  district,  and  county  courts  of  this  state, 
and  to  the  municipal,  criminal  and  probate  courts  of  the  city  and  county  of 
San  Francisco,  one  copy; 

5.  To  the  lieutentant-governor,  each  member  of  the  legislature,  secretary  of 
the  senate,  and  clerk  of  the  assembly,  at  the  session  when  such  laws  and 
joirruals  were  adopted,  one  coj)y; 

6.  To  each  of  the  incorporated  colleges  of  the  state,  the  university,  and  to 
such  other  literary  and  scientific  institutions  as  in  his  opinion  may  secure  an 
interchange  of  works,  one  copy; 

7.  Of  the  laws  alone,  to  the  county  clerk  of  each  county,  in  the  cheapest  and 
most  expeditious  manner,  to  be  by  the  sheriff  distributed  under  the  directions 
of  the  clerk,  one  copy  for  the  board  of  supervisors,  one  copy  to  each  county 
officer  and  each  justice  of  the  peace;  and  of  the  journals,  three  copies  of 
each  house  to  each  county  clerk,  for  the  use  of  the  county. 

410.  Distribution  of  reports  of  supreme  court. 

Sec.  410.  He  must  distribute  of  the  bound  volumes  of  the  decisions  of  the 
supreme  court,  as  soon  as  he  receives  them : 

1.  To  each  state,  one  copy; 

2.  To  the  libraiy  of  congress,  the  state  library,  and  the  supreme  court  li- 
brary, two  copies  each; 

3.  To  each  department  of  this  state,  and  to  each  of  the  United  States  dis- 
trict judges  for  this  state,  supreme,  district,  and  county  judges,  and  the  judges 
of  the  muuicii^al,  criminal,  and  the  j)robate  courts  of  the  city  and  county  of  San 
Francisco,  cue  copy; 

4.  To  each  district  attorne}^  and  county  clerk,  one  copy; 

5.  To  the  reporter  of  the  decisions,  ten  copies. 

411.  To  mark  hooks  distributed. 

Sec.  411.  The  secretary  of  state  must  indelibly  mark  each  book  distributed  to 
officers  in  this  state  (except  legislative  officers  and  the  reporter)  with  the  name 
of  the  county  to  which  and  the  official  designation  of  the  officer  to  whom  it  is 
sent.  Such  books  remain  the  property  of  the  state,  and  must  be  by  the  officers 
receiving  them  delivered  to  their  successors. 

412.  To  supprintend  and  take  charge  of  cajniol. 

Sec.  412.  The  secretary  of  state  is  the  superintendent  and  has  charge  of  the 
state  capitol,  and  he  must  keep  the  same,  together  with  all  property  therein,  in 
good  order  and  repair. 

413.  To  furnish  fuel  and  stationery. 

Sec  413.  Fuel,  lights,  and  stationery  for  the  senate  and  assembly,  supreme 
court,  and  state  and  supreme  court  libraries,  and  for  all  officers  having  their 
offices  or  chambers  in  the  state  capitol,  must  be  furnished  by  the  secretary  of 
state. 

120 


PUBLIC  OFFICEES.  414-417 

414.  Expenses  for  fuel,  etc.,  how  paid. 

Sec.  414.  The  expenses  incurred  by  him  in  carrying  into  effect  the  provisions 
of  sections  409,  410,  412,  and  413,  must  be  audited  by  the  board  of  examiners 
and  paid  out  of  any  moneys  specially  appropriated  for  that  purpose, 

415.  Trandatlon  of  laivs  into  Spanish,  etc. 

Sec.  415.  The'translation  of  the  laws  into  Spanish,  and  their  distribution,  is 
under  the  control  of  the  secretary  of  state,  as  follows:  During  the  month  of 
December  of  each  legislative  year  he  must  advertise  for  proposals  for  the  trans- 
lation into  Spanish  of  such  laws  as  may  be  authorized  by  the  legislature.  The 
proposals  received  must  be  opened  on  the  first  Monday  in  February  thereafter, 
in  the  presence  of  a  joint  committee  of  both  houses  of  the  legislature,  who 
must,  within  ten  days  thereafter,  award  the  contract  to  the  lowest  comj)etent 
bidder;  but  not  more  than  seventy-five  cents  per  folio  of  one  hundred  words 
must  be  paid  for  translating,  preparing  the  index,  and  correcting  the  proof 
sheets  for  the  jirinter,  all  of  which  must  be  done  by  the  translator  within  three 
months  from  the  time  he  is  furnished  with  the  copy.  The  Spanish  laws  must 
be  distributed  in  the  same  manner  as  laws  printed  in  English,  to  the  counties 
of  San  Diego,  San  Bernardino,  Los  Angeles,  Santa  Barbara,  San  Luis  Obispo, 
Monterey,  Santa  Clara,  Contra  Costa,  Alameda,  Marin  and  Scmoma,  and  one 
copy  must  be  sent  to  each  of  the  district  judges  of  the  first,  third,  and  seventh 
districts.  Before  entering  on  his  duties  the  translator  must  take  an  oath  for 
the  faithful  and  correct  translation  of  the  laws  and  joint  and  concurrent  resolu- 
tions as  herein  ordered,  and  give  bond,  with  two  good  and  sufficient  sureties, 
in  the  sum  of  five  thousand  dollars  penalty,  to  be  approved  by  the  secretary  of 
state,  conditioned  for  the  entire,  correct  and  complete  translation  and  service 
to  be  done  as  herein  provided;  and  his  account  for  such  services,  when  certified 
by  the  secretary  of  state,  must  be  submitted  to  the  board  of  examiners,  and 
when  allowed,  audited  by  the  controller  and  paid  by  the  treasurer  of  state. 

416.  Fees. 

Sec.  416.  The  secretaiy  of  state,  for  services  performed  in  his  ofiice,  must 
charge  and  collect  the  following  fees : 

1.  For  a  copy  of  any  law,  resolution,  record,  or  other  document  or  paper  on 
file  in  his  office,  twenty  cents  per  folio. 

2.  For  affixing  certificate  and  seal  of  state,  two  dollars. 

3.  For  filing  articles  of  incorporation,  five  dollars. 

4.  For  recording  articles  of  incorporation,  twenty  cents  per  folio. 

5.  For  issuing  each  certificate  of  incorporation,  three  dollars. 

6.  For  receiving  and  recording  each  official  bond,  five  dollars. 

7.  For  each  commission,  passport,  or  other  document  signed  by  the  governor 
and  attested  by  the  secretary  of  state  (pardons  excepted),  five  dollars. 

8.  For  each  patent  for  land  issued  by  the  governor,  if  for  less  than  one 
hundred  and  sixty  acres,  one  dollar;  and  for  each  additional  one  hundred  and 
sixty  acres,  or  fraction  thereof,  one  dollar. 

For  searching  records  and  archives  of  the  state,  one  dollar. 

But  no  member  of  the  legislature  or  state  officer  can  be  charged  for  any  search 
relative  to  matters  appertaining  to  the  duties  of  their  offices;  nor  must  they  be 
charged  any  fee  for  a  certified  copy  of  any  law  or  resolution  passed  by  the 
legislature  relative  to  their  official  duties.  All  fees  collected  by  him  must  be 
paid  into  the  state  treasury  at  the  end  of  each  month,  and  constitute  the  state 
library  fund. 

417.  Salary  of  secretary. 

Sec.  417.  The  annual  salary  of  the  secretary  of  state  is  four  thousand  dollars. 

121 


418-433  POLITICAL  CODE. 

418.  Salanj  of  deputy. 

Sec.  418.  Tlie  annual  salary  of  the  depnt}-  secretary  of  state  is  twenty-four 
livmdred  dollars. 

419.  Salary  of  clerk. 

Sec.  419.  The  annual  salary  of  the  clerk  for  the  secretary  of  state  is  twenty- 
four  hiindred  dollars. 

420.  Salary  of  recording  clerks. 

Sec.  420.  The  annual  salary  of  each  recording  clerk  for  the  secretary  of 
state  is  eigiiteeu  hundred  dollars. 

421.  Salary  of  (jcneral  clerk. 

Sec.  421.  The  annual  salary  of  the  general  clerk  for  the  secretary  of  state  is 
eighteen  hundred  dollars. 

422.  Salary  of  special  clerks. 

Sec.  422.  The  secretary  of  state  daring  each  legislative  year,  from  January 
until  July,  inclusive,  may  emplo}'  two  special  clerks  at  a  monthly  salary  not 
exceeding  one  hundred  and  fifty  dollars  each, 

423.  Official  bond. 

Sec.  423.  The  secretary  of  state  must  execute  an  official  bond  in  the  siam  of 
ten  thousand  dollars. 

AETICLE  VI. 

CONTROLLER, 

433.  General  duties. 

Sec  433.  It  is  the  duty  of  the  controller: 

1.  To  sujDcrintend  the  fiscal  concerns  of  the  state; 

2.  To  report  to  the  governor,  on  the  second  Monday  in  October  next  preced- 
ing each  regular  session  of  the  legislature,  a  statement  of  the  funds  of  the 
state,  its  revenues,  aud  of  the  public  expenditures  during  the  two  preceding 
fiscal  years,  together  with  a  detailed  estimate  of  the  expenditui'es  to  be  defrayed 
from  the  treasury  for  the  two  ensuing  fiscal  years,  specifying  therein  each  object 
of  expenditure,  and  distinguishing  between  such  as  are  provided  for  by  perma- 
nent or  temporary  appropriations  and  such  as  must  be  provided  for  by  a  new 
statute,  and  suggesting  the  means  from  which  such  expenditures  are  to  be 
defrayed; 

3.  To  accompany  his  biennial  rejjort  with  tabular  statements,  showing:  1.  The 
amount  of  each  a})propriation  for  the  two  preceding  fiscal  years,  the  amounts 
exjjended,  aud  the  balance,  if  any;  2.  The  amount  of  revenue  chargeable  to  each 
county  for  such  years,  the  amount  paid,  and  the  amount  un2:)aid  or  due  therefrom; 

4.  When  requested,  to  give  information  in  writing  to  either  house  of  the  legis- 
lature relating  to  the  fiscal  affairs  of  the  state  or  the  duties  of  his  office; 

5.  To  suggest  plans  for  the  improvement  and  management  of  the  }>ublic  rev- 
enues; 

0.  To  keej)  and  state  all  accounts  in  which  tlie  state  is  interested; 

7.  To  keep  an  account  of  all  warrants  drawn  upon  the  treasurer,  and  a  sepa- 
rate account  under  the  head  of  each  specific  appropriation,  showing  at  all  times 
the  unex^^ended  balance  of  such  appropriation; 

8.  To  keep  an  account  between  tlie  state  aud  the  treasurer,  and  therein  charge 
the  treasurer  with  the  balance  in  the  treasury  wlien  he  came  into  office,  and  with 
all  moneys  received  by  him,  and  credit  liim  witli  all  warrants  drawn  on  and  paid 
by  him; 

9.  To  keep  a  register  of  warrants,  showing  the  fund  upon  which  they  are 
drawn,  the  number,  in  whose  favor,  for  what  service,  the  appropriation  applica- 

122 


PUBLIC  OFFICEES.  433-435 

ble  to  the  payment  thereof,  when  the  liability  accrued,  and  a  receii:»t  from  the 
person  to  whom  the  warrant  is  delivered; 

10.  To  audit  all  claims  against  the  state  in  cases  where  there  is  [are]  sufficient 
provisions  of  law  for  the  payment  thereof; 

11.  To  examine  and  settle  the  accounts  of  all  persons  indebted  to  the  state, 
and  to  certify  the  amount  to  the  treasurer,  and  upon  presentation  and  tiling  of 
the  treasurer's  receipt  therefor  to  give  such  jierson  a  discharge  and  charge  the 
treasurer  therewith; 

12.  In  his  discretion  to  require  any  person  presenting  an  account  for  setth- 
ment  to  be  sworn  before  him,  and  to  answer,  orally  or  in  writing,  as  to  any  facts 
relating  to  it; 

13.  To  require  all  persons  who  have  received  any  moneys  belonging  to  the 
state  and  have  not  accounted  therefor  to  settle  their  accounts; 

14.  In  his  discretion  to  inspect  the  books  of  any  person  charged  with  the 
receipt,  safe  keeping,  or  disbursement  of  public  moneys; 

15.  In  his  discretion  to  require  all  persons  who  have  received  moneys  or  se- 
curities, or  have  had  the  disposition  or  management  of  any  i^rojDerty  of  the  state 
of  which  an  account  is  kei:)t  in  his  office,  to  render  statements  thereof  to  him; 
and  all  such  jDersous  must  render  such  statement  at  such  times  and  in  such  form 
as  he  may  require; 

16.  To  direct  and  superintend  the  collection  of  all  moneys  due  the  state,  and 
institute  suits  in  its  name  for  all  official  delinquencies  in  relation  to  the  assess- 
ment, collection,  and  payment  of  the  revenue,  and  against  persons  who  by  any 
means  have  become  possessed  of  public  money  or  property  and  fail  to  pay  over 
or  deliver  the  same,  and  against  all  debtors  of  the  state;  of  Avhich  suits  the 
courts  of  Sacramento  county  have  jurisdiction,  without  regard  to  the  residence 
of  the  defendants; 

17.  To  draw  warrants  on  the  treasurer  for  the  paj^ment  of  moneys  directed  by 
law  to  be  paid  out  of  the  treasury;  but  no  warrant  nuist  be  drawn  unless 
authorized  by  law,  and  upon  an  unexhausted  specific  aj^propriation  provided  by 
law  to  meet  the  same.  Every  warrant  must  be  drawn  upon  the  fund  out  of 
which  it  is  payable,  and  specify  the  service  for  which  it  is  drawn,  when  the 
liability  accrued,  and  the  specific  appropriation  aj^plicable  to  the  j^ayment 
thereof; 

18.  To  furnish  the  state  treasurer  with  a  list  of  wai-rants  drawn  upon  the 
treasury ; 

19.  To  have  printed  and  forwarded  to  the  auditor  of  each  county  blank  state 
licenses; 

20.  To  authenticate  with  his  official  seal  all  drafts  and  waiTants  drawn  by 
him,  and  all  copies  of  papers  issued  from  his  office; 

21.  To  perform  the  duties  of  a  member  of  the  state  board  of  equalization, 
and  of  the  state  board  of  tide  land  commissioners,  and  such  other  duties  as  are 
prescribed  by  law. 

434.  Certificate  of  settlement. 

Sec.  434.  The  certificate  mentioned  in  subdivision  11  of  section  433  must 
show  by  whom  the  payment  is  to  be  made,  the  amount  thereof,  and  the  funds 
into  which  it  is  to  be  paid,  and  must  be  numbered  in  order,  beginning  with 
number  one  at  the  commencement  of  each  fiscal  year. 

435.  Special  duties  connected  with  school  fund. 

Sec  435.  The  controller  must  keep  a  separate  account  of  the  school  fund, 
and  of  the  interest  and  income  thereof,  together  with  such  moneys  as  may  be 
raised  by  special  tax  or  otherwise  for  school  purposes.  He  must,  on  the  first 
day  of  February  and  on  the  first  day  of  August  of  each  year,  report  to  the 

123 


435-443  POLITICAL  CODE. 

superiutendent  of  public  instruction  a  statement  of  the  securities  belonging  to 
the  school  fund,  of  the  moneys  in  the  treasury  subject  to  apportionment,  and 
the  several  sources  from  which  they  accrued.  He  must  draw  his  warrant  on  the 
state  treasurer  in  favor  of  any  county  treasurer  whenever  such  county  treasurer 
jDresents,  with  his  indorsement,  an  order  drawn  by  the  superintendent  of  pul)lic 
instruction  in  favor  of  such  county,  and  the  warrant  so  drawn  is  not  subject  to 
the  provisions  of  Article  XVIII  of  this  chapter. 

436.  Order  in  ichich  warrants  must  be  drawn. 

Sec  436.  All  warrants  for  claims  which  have  been  audited  by  the  board  of 
examiners,  and  filed  in  his  office,  must  be  drawn  in  the  order  of  the  numbers 
l^laced  upon  them  by  that  board. 

437.  Proceedings  against  defaulters. 

Sec.  437.  Whenever  any  person  has  received  moneys,  or  has  money  or  other 
personal  property  which  belongs  to  the  state  by  escheatment  or  otherwise,  or 
has  been  intrusted  with  the  collection,  management,  or  disbursement  of  any 
moneys,  bonds,  or  interest  accruing  therefrom,  belonging  to  or  held  in  trust  by 
the  state,  and  fails  to  render  an  account  thereof  to,  and  make  settlement  with 
the  controller  within  the  time  prescribed  by  law,  or  when  no  particular  time  is 
specified,  fails  to  render  such  account  and  make  settlement,  or  who  fails  to  pay 
into  the  state  treasuiy  any  moneys  belonging  to  the  state,  upon  being  required 
so  to  do  by  the  controller,  within  twenty  days  after  such  requisition,  the  con- 
troller must  state  an  account  with  such  person,  charging-  twenty-five  per  cent, 
damages,  and  interest  at  the  rate  of  ten  per  cent,  per  annum  from  the  time  of 
failure;  a  copj-  of  which  account  in  any  suit  therein  is  i^iima  facie  evidence  of 
the  things  therein  stated.  But  in  case  the  controller  cannot  for  want  of  in- 
formation state  an  account,  he  may,  in  any  action  brought  by  him,  aver  that 
fact,  and  allege  generally  the  amount  of  money  or  other  projDerty  which  is  due 
to  or  which  belongs  to  the  state.  [Amendment,  appi^oved  March  30,  1874; 
Amendments  1873-4,  7;  took  effect  July  G,  1874. "^^ 

438.  Salary. 

Sec.  438.  The  annual  salary  of  the  controller  of  state  is  foiu'  thousand 
dollars. 

439.  Salary  of  deputy  controller. 

Sec.  439.  The  annual  salary  of  the  deputy  controller  is  three  thousand 
dollars. 

440.  Salary  of  bookkeeper. 

Sec.  440.  The  annual  salary  of  the  bookkeej)er  for  the  controller  is  twenty- 
four  hundred  dollars. 

441.  Salary  of  clerks. 

Sec  441.  The  aniiual  salary  of  each  clerk  in  the  controller's  office  is  eighteen 
hundred  dollars. 

442.  Official  bond. 

Sec  442.  The  controller  must  execute  an  official  bond  in  the  sum  of  fifty 
thousand  dollars. 

443.  Controller  to  make  annual  estimate  for  school  expenses. 

Sec.  443.  The  state  controller  must,  between  the  tentb  day  of  August  and 
the  first  day  of  September  of  each  year,  estimate  the  amount  necessary  to  raise 
the  sum  of  seven  dollars  for  each  census  child,  between  the  ages  of  five  and 

(i)  Tlif  original  Bcction  did  not  have  the  words  "  or  moneyB  Ix-lonKinf?  to  the  Btate;"  nor  the  last  sentence 

baH  money  or  other  personal  iiroperty  which  belongs  of  the  above  uiiK-ndiiicnt.     It  had  the  word  "  primary" 

to  the  state  by  esi-heatnient  or  otherwise;"    nor  tlie  instead  of  " prima  facie." 
worda  "  or  who  fails  to  pay  into  the  state  treasury  any 

124 


PUBLIC  OFFICERS.  443-452 

seventeen  j^ears,  in  this  state,  which  shall  be  the  amount  necessary  to  be  raised 
by  ad  valorem  tax  for  school  purposes  during  the  year;  which  amount  the  con- 
troller must  immediately  certify  to  the  state  board  of  equalization.  [New  f<ec- 
tion,  approved  March  13,  1874;  Amendmenls  1873-4,  84;  look  effect  from  passage. 

[TliG  following-  special  acts  in  relation  to  the  duties  of  the  controller,  passed 
since  the  adoption  of  the  codes,  may  be  refen-ed  to: 

An  act  to  autliorize  the  controller  of  state  to  issue  duplicate  waiTants  (in 
favor  of  trustees  of  state  normal  school  and  O.  P.  Fitzgerald),  approved  Januarv 
2G,  1872;  1871-2,  38;  repealed  in  part  by  act  of  March  23,  1872;  1871-2,  .537\ 

An  act  to  jDrovide  for  the  return  to  the  state  treasury  and  cancellation  of 
certain  conti-oller's  warrants  (drawn  upon  funds  of  swamp  land  districts  and 
received  in  payment  of  swamp  lands),  approved  March  23,  1874;  1873-4,  519. 

An  act  to  authorize  the  state  controller  to  issue  a  duplicate  warrant  (to 
Friend  &  Terry),  approved  March  25,  1874;  1873-4,  606. 

An  act  to  autliorize  the  controller  of  state  to  issue  duplicate  warrants  (to 
Jackson  Wilcoxson),  approved  March  26,  1874;  1873-4,  620. 

An  act  authorizing  the  controller  of  state  to  credit  certain  counties  with  the 
amounts  of  old  balances  due  the  state,  approved  March  30,  1874;  1873-4,  802. 

An  act  to  provide  for  the  payment  of  certain  controller's  %varrants,  approved 
March  30,  1874;  1873-4,  864.] 

ARTICLE  VII. 

TREASURER. 

452.  General  duties. 

Sec.  452.  It  is  the  duty  of  the  treasurer; 

1.  To  receive  and  keej)  in  the  vaults  of  the  state  treasury  all  moneys  belong- 
ing to  the  state  not  required  to  be  received  and  kept  by  some  other  j^erson; 

2.  To  file  and  keep  the  certificates  of  the  controller  delivered  to  him  when 
moneys  are  paid  into  the  treasury; 

3.  To  deliver  to  each  person  paying  money  into  the  treasiiry  a  receipt  show- 
ing the  amount,  the  sources  from  which  the  money  accrued,  and  the  funds  into 
which  it  is  paid,  which  receipts  must  be  numbered  in  order,  beginning  with  num- 
ber one  at  the  commencement  of  each  fiscal  year; 

4.  To  pay  waiTants  drawn  by  the  controller  out  of  the  funds  upon  and  in 
the  order  in  which  they  are  drawn; 

5.  Upon  payment  of  any  warrant,  to  take  upon  the  back  thereof  the  receipt 
of  the  person  to  whom  it  is  paid,  and  file  and  joreserve  the  same; 

6.  To  keep  an  account  of  all  moneys  received  and  disbursed; 

7.  To  keep  separate  accounts  of  the  different  funds; 

8..  To  report  to  the  controller,  on  the  last  day  of  each  month,  the  amount 
disbursed  for  redemption  of  bonds  and  in  payment  of  warrants  during  the 
month;  which  report  must  show  the  date  and  number  of  such  bonds  and  Avar- 
rants,  the  funds  out  of  which  they  were  paid,  and  the  balance  of  cash  on  hand 
iu  the  treasury  to  the  credit  of  each  fund; 

9.  At  the  request  of  either  house  of  the  legislature,  or  of  any  committee 
thereof,  to  give  information  in  writing  as  to  the  condition  of  the  treasury  or 
upon  any  subject  relating  to  the  duties  of  his  office; 

10.  To  report  to  the  governor  at  the  time  prescribed  in  section  332  of  this 
code,  the  exact  balance  in  the  treasury  to  the  credit  of  the  state,  with  a  sum- 
maiy  of  the  receipts  and  payments  of  the  treasury  during  the  two  preceding 
fiscal  years; 

11.  To  authenticate  with  his  official  seal  all  writings  and  papers  issued  from 
his  office; 

12.  To  discharge  the  duties  of  state  capitol  commissioner,  and  such  other 
duties  as  may  be  imposed  upon  him  by  law. 

125 


453-470  POLITICAL  CODE. 

453.  LhnUailons  upon  receipt  and  paynienl  of  money. 

Sec.  453.  He  must  receive  no  money  into  the  treasniy  unless  accompanied  by 
tlie  certificate  of  the  controller  provided  for  in  sections  433  and  434  of  this 
code,  and  must  pay  none  out  upon  warrants  issued  for  indebtedness  accruing 
prior  to  Januiirv  first,  eighteen  hundred  and  fifty-seven. 

454.  General  fund. 

JSec.  454.  The  general  fiind  consists  of  moneys  received  into  the  treasury  and 
not  specially  appropriated  to  any  other  fvmd. 

455.  Salary  of  Ireasurer. 

Sec.  455.  The  annual  salary  of  tlie  state  treasurer  is  four  thousand  dollars. 

456.  Salary  of  clerk. 

Sec.  456.  The  annual  sahuy  of  one  clerk  in  the  treasurer's  office  is  twenty- 
fnur  hundred  dollars;  of  the  other  clerk  eighteen  hundred  dollars. 

457.  Waichmen,  appoinimpnt  and  salary. 

Sec.  457.  The  ti-easurer  may  employ  two  watchmen,  at  an  annual  salary  each 
of  twelve  hundred  dollars. 

458.  Wafchmen,  powers  and  duties. 

Sec.  458.  The  watchmen  must  be  alternately  on  duty  at  all  hours  of  the  day 
and  night,  and  have  the  same  power  to  make  arrests  as  is  by  The  Pen.\l  Code 
conferred  upon  peace  officers. 

459.  Offi,rial  bond  ef  ireasurer. 

Sec.  459.  The  treasurer  niust  execute  an  official  bond  in  the  sum  of  one 
hundred  thousand  dollars. 

ARTICLE  VIII, 

ATTORNEY-GENERAL. 

470.   General  duties. 

Sec.  470.  It  is  the  duty  of  the  attorney-general: 

1.  To  attend  the  supreme  court  and  prosecute  or  defend  all  causes  to  which 
the  state  or  any  officer  thereof,  in  his  official  capacity,  is  a  part}-,  and  all  causes 
to  which  any  county  may  be  a  party,  unless  the  interest  of  the  county  is  adverse 
to  the  state,  or  some  officer  thereof  acting  in  his  official  capacity; 

2.  After  judgment  in  any  of  the  causes  referred  to  in  the  preceding  section, 
to  direct  the  issuing  of  such  process  as  may  be  necessary  to  carry  the  same  into 
execution ; 

3.  To  account  for  and  pay  over  to  the  jn-oper  officer  all  moneys  which  may 
come  into  his  possession  belonging  to  the  state  or  to  any  county; 

4.  To  keep  a  docket  of  all  causes  in  which  he  is  required  to  appear,  which 
must  during  business  hours  be  open  to  the  inspection  of  the  public,  and  nuist 
show  the  county,  district,  and  court  in  which  the  causes  have  been  instituted 
and  tried,  and  whetlier  they  are  civil  or  criminal;  if  civil,  the  nature  of  the 
demand,  the  stage  of  the  proceedings,  and,  when  prosecuted  to  judgment,  a 
memorandum  of  the  judgment;  of  any  process  issued  thereon,  and  whether 
satisfied  or  not,  and  if  not  satisfied,  the  return  of  the  sheriff;  and  if  criminal, 
the  nature  of  the  crime,  the  mode  of  prosecution,  the  stage  of  the  proceedings, 
and,  when  jjrosecuted  to  sentence,  a  memorandum  of  the  sentence  and  of  the 
execution  thei-eof,  if  the  same  has  been  executed,  and  if  not  executed,  of  the 
reasons  of  the  delay  or  prevention; 

5.  To  exercise  sui)ervisory  powers  over  district  attorneys  in  all  matters  per- 
taining to  the  duties  of  tlieir  ofiices,  and  from  time  to  time  require  of  them 
reports  as  to  the  condition  of  public  business  intrusted  to  their  charge; 

6.  To  give  his  opinion  in  writing,  without  fee,  to  the  legislature  or  either 

126 


PUBLIC  OFFICERS.  470-474 

Louse  thereof,  and  to  the  governor,  the  secretary  of  state,  controller,  treasurer, 
surveyor-general,  the  trustees  or  commissioners  of  state  institutions,  and  any 
district  attorney,  when  required,  upon  any  question  of  law  relating  to  their 
respective  offices; 

7.  When  required  by  the  public  service,  or  directed  by  the  governor,  to 
repair  to  any  county  in  the  state  and  assist  the  district  attorney  thereof  in  the 
discharge  of  his  duties; 

8.  To  bid  upon  and  purchase,  in  the  name  of  the  state  and  under  the  direction 
of  the  board  of  examiners,  auj  property  offered  for  sale  under  execution  issued 
upon  judgments  in  favor  of  or  for  the  use  of  the  state,  and  to  enter  satisfaction 
in  whole  or  in  part  of  such  judgments  as  the  consideration  for  such  purchases; 

9.  Whenever  the  property  of  a  judgment  debtor  in  any  judgment  mentioned 
in  the  preceding  subdivision  has  been  sold  under  a  prior  judgment,  or  is  subject 
to  any  judgment,  lien,  or  incumbrance  taking  precedence  of  the  judgment  in 
favor  of  the  sfate,  under  the  direction  of  the  board  of  examiners  to  redeem  such 
property  from  such  prior  judgment,  lien,  or  incumbrance;  and  all  sums  of  money 
necessary  for  such  redemption  must,  upon  the  order  of  the  board  of  examiners, 
be  paid  out  of  any  money  apioropriated  for  such  purpose; 

10.  When  in  his  opinion  it  may  be  necessary  for  the  collection  or  enforceujent 
of  any  judgment  herein  before  mentioned,  to  institute  and  prosecute,  in  behalf 
of  the  state,  such  suits  or  other  proceedings  as  he  may  find  necessary  to  set  aside 
and  annul  all  conveyances  fraudulently  made  by  such  judgment  debtors,  the  cost 
necessary  to  the  prosecution  must,  when  allowed  by  the  board  of  examiners,  be 
paid  out  of  any  appropriations  for  the  prosecution  of  delinquents; 

11.  To  discharge  the  duties  of  a  member  of  the  board  of  examiners,  of  tbe 
board  of  military  auditors,  and  other  duties  prescribed  by  law; 

12.  To  report  to  the  governor,  at  the  time  required  by  section  332  of  this  code, 
the  condition  of  the  affairs  of  his  department,  and  to  accompany  the  same  with 
a  copy  of  his  docket  and  of  the  reports  received  by  him  from  district  attorneys. 

471.  Salary. 

Sec.  471.  The  annual  salary  of  the  attorney-general  is  four  thousand  dollars. 

472.  Salary  of  clerk. 

Sec.  472.  The  annual  salary  of  the  clerk  for  the  attorney-general  is  eighteen 
hundred  dollars. 

473.  Official  bond. 

Sec.  473.  The  attorney-general  must  execute  an  official  bond  in  the  sum  of 
ten  thousand  dollars. 

474.  Duty  fl.s  to  escheats — Suits  and  counsel. 

Sec.  474.  It  shall  be  the  dut^'  of  the  attorney-general  to  institute  investigation 
for  the  discovery  of  all  real  and  personal  property  which  may  have  or  should 
escheat  to  the  state,  and  for  that  purpose  shall  have  full  power  and  authority  to 
cite  any  and  all  persons  before  any  of  the  probate  courts  of  this  state,  to  answer 
investigations  and  render  accounts  concerning  said  property,  real  or  personal, 
and  to  examine  all  books  and  jjapers  of  any  and  all  corporations.  When  any 
real  or  personal  property  shall  be  discovered  which  should  escheat  to  the  state, 
the  attorney-general  must  institute  suit  in  the  district  court  where  said  property 
shall  be  situated,  for  the  recovery,  to  escheat  the  same  to  the  state.  The  jiro- 
ceedings  in  all  such  actions  shall  be  those  provided  for  in  Title  YIII,  Part  III, 
Code  of  Civil  Procedure.  The  attorney-general  may,  for  the  purposes  and 
objects  of  this  section,  employ  counsel  to  act  in  his  place  and  stead  for  the 
discovery  and  recovery  of  both  personal  and  real  jjroperty,  and  in  such  pro- 
ceedings, both  in  investigation  for  discoveiy  or  proceedings  for  recovery,  such 

127 


474-487  POLITICAL  CODE. 

counsel  so  employed  shall  have  the  power  and  authority  of  the  attorne^'-general. 
The  compensation  for  services  of  such  counsel  shall  be  determined  by  the  board 
of  examiners,  and  paid  out  of  the  sums  so  found  to  be  escheated  and  recovered 
to  the  state,  and  not  otherwise;  provided,  that  the  State  of  California  shall  in  no 
case  be  responsible  for  any  charges  for  attorney  fees  for  suits  prosecuted  under 
this  act,  but  the  attorney-genei'al  is  hereby  authorized  to  pay  to  the  person  or 
persons  discovering  the  same  the  costs  and  charges  of  prosecuting  any  suit  or 
suits  under  this  act  a  sum  not  in  any  case  exceeding  ten  per  cent,  of  the  sums 
actually  received  as  provided  in  this  act.  [Neiv  section,  approved  April  1,  1876; 
Amendments  l'6~o-{j,  15;  tooJceffectfrom  jMSsage. 


AETICLE  IX. 

SURVEYOR-GENERAL. 

483.  General  duties. 

Sec.  483.  It  is  the  duty  of  the  surveyor-general: 

1.  To  discharge  the  duties  relating  to  the  public  lands  imposed  upon  him  by 
Title  VIII  of  Part  III  of  this  Code.  [See  post,  3395,  3574.] 

2.  When  requu-ed,  to  survey  and  mark  the  boundary-lines  of  counties,  cities, 
villages  and  towns; 

3.  To  report  to  the  governor  at  the  time  prescribed  in  section  332  of  this  code: 
1.  A  statement  of  the  progress  made  in  the  execution  of  the  surveys  enjoined 
on  him  by  law;  2.  An  estimate  of  the  aggregate  quantitj^  of  land  belonging  to  the 
state,  and  the  best  information  he  may  be  able  to  obtain  as  to  the  characteristics 
of  the  same;  3.  An  estimate  of  the  aggregate  quantity  of  all  land  used  for  or 
adapted  to  tillage  and  grazing  within  each  county  of  the  state;  4.  An  estimate  of 
the  number  of  horses,  cattle,  sheep,  and  swine,  within  each  county  of  the  state;  5. 
An  estimate  of  the  quantity  of  wheat,  rye,  corn,  potatoes,  grapes,  and  other  agri- 
cultural and  horticultural  productions  of  the  two  preceding  years,  together  with 
his  views  as  to  the  presence,  cause,  and  remedy  of  any  diseases  or  other  malady 
preventing  full  and  perfect  productions;  6.  An  estimate  of  the  quantity  of  all 
mineral  lands  within  each  county  of  the  state,  and  the  quantity  and  value  of 
each  mineral  j^roduced  during  the  two  preceding  years,  together  with  a  descrip- 
tion of  the  localities  in  which  such  minerals  may  be  found;  7.  All  facts  in  his 
opinion  calculated  to  promote  the  development  of  the  resources  of  the  state; 

4.  To  recjuire  county  surveyors  and  assessors  to  collect  and  transmit  to  him, 
at  such  times  as  he  may  direct,  information  relative  to  the  subject-matter  of  his 
biennial  reports; 

5.  To  authenticate  with  his  official  seal  all  writings  and  pai)ers  issued  from 
his  office; 

G.  To  perform  such  other  duties  as  may  be  required  of  him  by  law. 

484.  Salary. 

Sec.  484.  The  annual  salary  of  the  surveyor-general  is  two  thousand  dollars. 

485.  Salary  of  deputy  surveyor-general. 

Srr'.  485.  The  annual  salary  of  the  deputy  sui-veyor-general  is  twenty-four 
hundred  dollars. 

486.  Salary  of  clerk. 

Se(j.  480.  The  annual  salary  of  each  clerk  in  the  office  of  the  sui-veyor-general 
is  eighteen  hundred  dollars. 

487.  Official  Ijond. 

Sec.  487.  The  surveyor-general  must  execute  an  official  bond  in  the  sum  of 
ten  thousand  dollars. 

128 


PUBLIC  OFFICERS.  497-526 

ARTICLE  X. 

REGISTER    OF    THE    STATE    LAND    OFFICE. 

497.  Register  and  dejndy. 

Sec.  497.  The  surveyor-general  is  ex  officio  register,  and  the  deputy  surveyor- 
general  is  ex  officio  deputy  register,  of  the  state  land  office. 

498.  Duties  of  register-. 

Sec.  498.  The  duties  of  [the]  register  are  prescribed  in  Title  VIII  of  Part  III 
of  this  Code.     [See  post,  3395-3574.] 

499.  Salary. 

Sec.  499.  The  annual  salary  of  the  register  is  two  thousand  dollars. 

500.  Salary  of  clerks. 

Sec.  500.  The  annual  salary  of  each  clerk  in  the  register's  office  is  eighteen 
hundred  dollars. 

501.  Fees  of  register . 

Sec  501.  The  register  must  charge  and  collect  fees  as  follows:  For  each 
certificate  of  pui'chase,  duplicate  or  patent,  three  dollars;  for  certifying  a  con- 
tested case  to  district  court,  three  dollars;  for  cojDies  of  papers  in  his  office,  ten 
cents  per  folio,  and  fifty  cents  for  the  certificate  with  the  seal  attached;  and  such 
other  fees  as  may  be  allowed  by  law.  All  fees  received  by  the  register  must  be 
disposed  of  as  j^rovided  in  Title  VIII  of  Part  III  of  this  code.    [See  post,  3574.] 

502.  Official  bond. 

Sec.  502.  The  register  must  execute  an  official  bond  in  the  sum  of  ten  thou- 
sand dollars. 

ARTICLE  XL 

OF    THE    SUPERINTENDENT    OF    PUBLIC   INSTRUCTION. 

512.  Duties. 

Sec.  512.  The  duties  of  the  superintendent  of  public  instruction  are  prescribed 
in  Title  III  of  Part  III  of  this  Code.     [See  post,  1532.] 

513.  Salary. 

Sec.  513.  The  annual  salai-y  of  the  sujierintendent  is  three  thousand  dollars. 

514.  Salary  of  deputy. 

Sec.  514.  The  annual  salary  of  the  deputy  for  the  superintendent  is  eighteen 
hundred  dollars. 

515.  Salary  of  clerk. 

Sec.  515.  The  annual  salary  of  the  clerk  for  the  superintendent  is  fifteen 
hundred  dollars. 

516.  Traveliug  expenses. 

Sec.  516.  The  actual  traveling  expenses  of  the  superintendent,  not  exceeding 
fifteen  hundred  dollars  annually,  must  be  audited  by  the  board  of  examiners 
and  2:)aid  out  of  the  general  fund  in  the  state  treasury. 

517.  Official  bond. 

Sec.  517.  The  superintendent  must  execute  an  official  bond  in  the  sum  of  ten 
thousand  dollars. 

ARTICLE  XII. 

STATE    PRINTER. 

526.  Superintendent  of  state  printing — Duties. 

Sec.  526.  It  is  the  dut}'  of  the  superintendent  of  state  printing; 
1.  To  print  the  laws,  the  journals  of  the  legislature,  reports  of  state  officers, 
9  129 


526  POLITICAL  CODE. 

public  doctiments  ordered  to  be  printed  by  the  legislature,  blanks  for  the 
supreme  court,  the  offices  of  governor,  secretary  of  state,  controller,  treasurer 
of  state,  superintendent  of  public  instruction,  attornej^-general,  surveyor-gen- 
eral, and  register  of  the  land  office,  the  bills,  resolutions,  and  other  job  jn'inting 
vrhich  may  be  ordered  by  either  of  the  two  houses  of  the  legislature,  and  other 
public  printing  for  the  state,  unless  otherwise  expresslj'  ordered  by  law. 

2.  To  publish,  pi-efixed  to  each  volume  of  the  laws,  the  names  and  place  of 
residence  of  the  governor  and  other  executive  officers  of  the  state,  lieutenant- 
governor,  senators  and  representatives  in  the  legislature,  the  presiding  officers 
of  the  senate  and  assembl}',  and  of  commissioners  of  the  State  of  California 
residing  out  of  the  state  and  in  office  at  the  time  of  such  publication. 

3.  To  perform  the  duties  required  by  the  provisions  of  Article  XII,  Chapter 
II,  Title  I,  Part  III  of  this  Code,  and  such  other  duties  as  are  imposed  upon 
him  by  law. 

4.  He  shall  keep  in  his  office,  open  to  public  inspection,  a  time-book,  con- 
taining the  name  of  every  employee  connected  with  the  state  printing  office, 
the  time  employed,  the  rate  of  wages,  and  amount  i:)aid;  and  he  shall  certify 
under  oath  to  the  correctness  of  all  claims  for  services  rendered  and  materials 
furnished,  which  certificate  shall  be  attached  to  and  presented  with  each  claim 
that  shall  be  presented  to  the  board  of  examiners  for  allowance,  and  no  such 
claim  shall  be  certified  or  allowed  unless  it  be  fully  itemized. 

5.  He  shall  file  in  the  office  of  the  secretary  of  state  all  proj)osals,  bids,  con- 
tracts, bonds  and  other  papers  apj^ertaining  to  the  aw^arding  of  contracts,  now 
in  his  possession,  or  wdiich  may  hereafter  come  into  his  possession,  retaining  in 
his  office  copies  of  the  same;  and  the  secretary  of  state  shall  promptly  furnish 
the  board  of  examiners,  for  their  use,  certified  copies  of  all  such  papers. 

6.  All  printing  required  by  any  of  the  state  departments,  boards,  or  any  state 
officer  for  the  state,  the  order  for  the  same  shall  be  made  out  upon  a  printed 
blank  with  voucher  attached,  to  be  furnished  by  the  sui^erintendent  of  state 
printing,  and  fonvarded  to  the  office  of  said  superintendent,  who  shall  enter 
upon  a  book  kept  in  his  office  for  that  puri:)ose,  a  transcript  of  said  orders;  and 
shall  return  with  the  work,  when  completed,  to  the  person  ordering  the  same, 
the  original  order  with  duplicate  voucher  attached,  said  voucher  to  be  signed 
by  tbe  person  receiving  the  work,  and  returned  to  the  superintendent  of  state 
printing,  and  both  original  and  duplicate  orders  shall  be  ke2:)t  on  file  in  his 
office,  and  shall  be  sufficient  voucher  for  said  work.  The  superintendent  of 
state  printing  shall  enter  upon  a  book  to  be  kept  for  said  purpose,  the  name, 
quantity  and  weight  of  paper  used  for  each  order  printed.  He  shall  also  certify 
under  oath,  that  all  materials,  stock  and  paper  furnished  the  office  under  con- 
tracts, are  of  the  quality,  kind  and  weight  required  by  such  contracts;  and  no 
claim  arising  under  any  contract  shall  be  allowed  or  paid  unless  accompanied 
by  such  certificate.  He  shall  also  retain  and  file  in  his  office  one  coi:)y  or  sam- 
ple of  each  blank,  circular,  pamphlet,  book,  legislative  bill,  file  or  report,  or 
any  other  work  emanating  from  the  state  jirinting  office,  excepting  blank  books, 
of  which  he  shall  file  only  sample  sheets-^  said  coj^ies  or  samples  shall  bear  a 
uniform  number  and  date  Avith  the  voucher.  [Amendment,  approved  April  3, 
187C;  Amendments  181 5~G,  IG;  took  effect  J  rom  passage. '■^^ 

(a)   Till-  orifpnal  Bfiction  had  the  word  "  state  print-  The  original  section  had  l)een  Bupersedrd  by  "  An 

er"  instead  of  "  superintendent  of  state  printing. "     It  Act  to  establisli  a  state  printing  ollic*-  and  to  ereate  the 

did  not  liave  the  fourth,  fiftli  or  sixth  subdivision;  the  ortico  of  superintendent  of  state  priiitint,',"  approved 

above  tliird   was  fourth,  and  there  was  a  third  sub-  Mareh  26,  1872;  1W71-2,  55+.     That  aet  was  repealed  by 

division  as  f(dlows:  the  act  containing  the  above  amendment.    See  post, 

"'.i.  To  furnish  to  each  citizen  who  may  apply  there-  538. 
for,  a  copy  of  the  laws  of  each  sessiou  of  the  legisla- 
ture, at  a  price  not  exceeding  three  dollars  for  bound 
and  two  dollars  for  unbound  copies." 

130 


PUBLIC  OFFICERS.  527-529 

527.  Number  of  docv.menis  to  be  pririted. 

Sec.  527,  Whenever  any  message  or  document,  in  book  form,  is  ordered 
I^rinted  by  either  house,  four  hundred  and  eighty  copies  thereof,  in  addition  to 
the  number  ordered,  must  be  struck  off  and  retained  in  sheets,  and  bound  with 
the  journals  of  the  house  ordering  the  same,  as  an  appendix.  Of  bills  ordered 
printed,  when  the  number  is  not  fixed  in  the  order,  there  must  be  printed  two 
hixndred  and  forty  coj)ies. 

528.  Laivs  and  journals  to  be  printed. 

Sec.  528.  There  must  be  printed  of  the  laws  of  each  session  of.  the  legisla- 
ture, twenty-two  hundred  and  fifty  copies  in  English^i  to  be  dejDosited  with  the 
secretary  of  state,  who,  after  retaining  a  sufficient  number  of  said  volumes  for 
distribution,  in  accordance  with  the  provisions  of  section  409  of  the  Political 
Code,  shall  deposit  one  hundred  and  fifty  copies  with  the  state  librarian;  the 
remaining  copies  to  be  sold  at  a  price  not  to  exceed  three  dollars  per  bound 
volume;  the  moneys  thus  received  to  be  paid  into  the  state  treasury  at  the  end 
of  each  month,  as  other  fees  are  paid  by  the  said  secretary  of  state,  and  for  the 
same  purposes;  and  of  such  laws,  resolutions,  and  memorials  as  may  be  desig- 
nated by  the  legislature,  two  hundred  and  forty  copies  in  Spanish.  Of  the 
journals  of  the  senate  and  assembly,  there  must  be  printed  four  hundred  and 
eighty  copies,  in  one  volume  or  two,  as  may  be  required  by  the  size  thereof. 
The  appendices  to  the  journals  of  both  houses  must  be  printed  in  one  volume. 
[Amendment,  approved  April  3,  1876;  Amendments  1875-6,  17;  took  effect  from 
passage.'-'^'' 

529.  Manner  of  printing . 

Sec.  529.  Printing  must  be  done  as  follows: 

The  laws,  journals,  messages,  and  other  documents  in  book  form  must  be 
printed  solid,  with  long  primer  type,  on  good  white  paper;  each  page,  except  of 
the  laws,  must  be  thirty-three  ems  wide  and  fifty-eight  ems  long,  including 
title,  blank  line  under  it,  and  foot  line;  of  the  laws  the  same  length,  and 
twenty-nine  ems  wide,  exclusive  of  marginal  notes,  which  notes  must  be  printed 
in  nonpareil  type,  seven  ems  wide.  Figure  work,  and  rule  and  figure  work,  in 
messages,  reports,  and  other  documents  in  book  form,  must  be  on  images  corre- 
sponding in  size  with  the  journals,  if  it  can  be  brought  in  by  using  type  not 
smaller  than  minion;  if  not,  it  must  be  executed  in  a  form  to  fold  and  bind 
with  the  volume.  Bills  and  other  work  of  a  similar  chai-acter  must  be  printed 
with  long  primer  type,  on  white  plain  cap  paper,  commencing  the  heading  one 
fourth  of  the  length  of  the  sheet  from  its  top,  and  be  forty- six  ems  wide  and 
seventy-three  ems  long,  including  running  head,  blank  line  under  it,  and  foot 
line,  and  between  each  j)rinted  line  there  must  be  a  white  line  corresjDonding 
with  the  body  of  the  type,  and  each  line  must  be  numbered.  Blanks  must  be 
printed  in  such  form  and  on  such  paper  and  with  such  sized  type  as  the  officers 
ordering  them  may  direct.  The  laws  must  be  printed  without  chapter  head- 
ings, and  without  blank  lines,  with  the  exception  of  one  head  line,  one  foot 
line,  two  lines  between  the  last  section  of  an  act  and  the  title  of  the  next  act. 
When  there  is  not  space  enough  between  the  last  section  of  an  act  to  print  the 
title  and  enacting  clause,  and  one  line  of  the  following  act  uj^on  the  same  page, 
such  title  may  be  printed  upon  the  following  page.  The  journals  must  be 
printed  without  blank  lines,  with  the  exception  of  one  head  line,  one  foot  line, 

(a)  Original  section:  and  assembly,  there  must  be  printed  four  hundred  and 

Sec.  528.  There  must  be  printed  of  the  laws,  resolu-  eighty  copies  in  one  volume  (U-  two,  as  may  be  required 

tions  and  memorials  of  each  session  of  the  legislature,  by  the  size  thereof.     The  appendices  to  the  journals  of 

one  thousand  six  hundred  and  eighty  copies  in  Eng-  both  houses  must  be  printed  in  one  volume;  the  same 

lish;  and  of  such  laws,  resolutions  and  memorials  as  matter  must  not  be  twice  i^rinted.    All  printing  must 

may  be  designated  by  the  legislature,  two^hundred  and  be  done  within  this  state, 
forty  copies  in  Spanish.     Of  the  journals  of  the  senate 

131 


529-531  POLITICAL  CODE. 

aud  two  lines  between  the  journal  of  one  day  and  that  of  the  followiug  day. 
In  printing  the  ayes  and  noes,  the  word  "  ayes"  and  the  word  "  noes"  must  be 
run  in  with  the  names. 

530.  Appointment,  qualifications,  and  bond  of  svperintendent  of  state  printing. 
Sec.  530 .  The  superintendent  of  state  priiiting  shall  be  appointed  and  com- 
missioned by  the  governor  of  the  state,  and  shall  hold  office  during  the  pleasure 
of  the  governor,  and  until  his  successor  is  appointed  and  qualified;  he  shall  be 
a  competent  practical  piinter,  and  before  entering  upon  the  discharge  of  the 
duties  of  his  office,  shall  give  a  good  and  sufficient  bond  to  the  people  of 
the  State  of  California,  in  the  sum  of  ten  thousand  dollars,  with  two  or  more 
sureties,  to  be  approved  hj  the  governor,  for  the  faithful  performance  of  his 
duties,  which  bond  shall  be  filed  in  the  office  of  the  secretary  of  state.  The 
present  superintendent  of  state  printing  may  hold  the  position  without  a  re- 
appointment or  the  giving  of  a  new  bond,  and  his  said  appointment  and  bond 
sliall  be  held  and  treated  as  if  made  and  given  under  this  act,  and  be  subject  to 
all  its  provisions;  and  the  office  of  superintendent  of  state  printing  heretofore 
created,  is  hereby  continued  under  this  act.  [Amendment,  approved  April  3, 
187G;  Amendments  lKl^-(i,  18;  took  effect  from  passage}"^ 

531.  Duties  of  superintendent  of  state  printing. 

Sec.  531.  The  duties  of  the  superintendent  of  state  printing  shall  be  as  fol- 
lows: He  shall  have  the  entire  charge  and  superintendence  of  state  printing. 
He  shall  take  charge  of  and  be  responsible  on  his  bond  for  all  manuscripts  and 
other  matter  which  may  be  placed  in  his  hands  to  be  printed,  engraved,  or 
lithographed,  and  shall  cause  the  same  to  be  promj^tly  executed.  He  shall  re- 
ceive from  the  senate  or  assembly  all  matter  ordered  by  either  house  to  be 
printed  and  bound,  or  either  printed  or  bound,  and  shall  keep  a  record  of  the 
same,  and  of  the  order  in  which  it  may  be  received,  and  when  the  w"ork  shall 
have  been  executed  he  shall  deliver  the  finished  sheets  or  volumes  to  the  ser- 
geant-at-arms  of  the  senate  or  assembly,  or  of  an}'^  department  authorized  to 
receive  them,  whose  receipts  therefor  shall  be  a  sufficient  voucher  to  the  said 
superintendent  of  state  printing  for  their  delivery.  He  shall  receive  and 
promptly  execute  all  orders  for  printing  required  to  be  done  for  the  various 
state  officers.  He  shall  employ  such  compositors,  pressmen,  and  assistants  as 
the  exigency  of  the  work  from  time  to  time  requires,  and  may  at  any  time  dis- 
charge such  employees;  provided,  that  at  no  time  shall  he  pay  said  compositors, 
pressmen,  or  assistants,  a  higher  rate  of  wages  than  is  paid  by  those  emplo3'ing 
printers  in  Sacramento  for  like  work.  He  shall  at  no  time  employ  more  com- 
positors or  assistants  than  the  absolute  necessities  of  the  state  printing  may  de- 
mand, and  he  shall  not  permit  any  other  than  state  work  to  be  done  in  the  state 
printing  office.  The  superintendent  of  state  printing  shall,  on  or  before  the  first 
day  of  September  of  each  year,  make  a  report  in  writing  to  the  governor,  em- 
bracing a  record  of  the  complete  transactions  of  his  office,  which  report  shall 
sljow  in  detail  all  the  items  of  expense  attending  the  state  printing,  and  all  the 
expenses  of  the  office,  including  repairs,  and  the  inirchase  of  materials  of  all 
kinds;  said  report  shall  also  state  the  number  of  reams  and  various  kinds  of 
paper  delivered  to  him,  and  the  amount  and  cpiality  remaining  on  hand,  which 
report  shall  be  printed  for  the  use  of  the  legislature.  [Amendment,  approved 
Aprd  3,  187G;  Amendmcnls  1875-0,  18;  took  efecl  from  passage. ^'''> 

(o)  The  original  sectionH  SSO,  531,  SSa,  533,  534,  535,  Ing  the  amendments  to    the  above-named  sections. 

53fi  Hnd  537  related  to  the  conipeiisutiou  of  the  state  See  section  538. 

printer.    Thej- wits  Buperseded  by  "  An  A<-t  to  establish  As   the  original  sections  throw  no  light  upon  the 

a  state  printing  (iflire  and  to  in-ate  the  nflicj  of  super-  amendments,  and  are  consequently  unimportant,  they 

iutendent  of  sti^tc  printing,"  api>roved  March  20,  1872;  are  omitted. 
1871-'-',  554.     This  act  was  repealed  by  the  act  contain- 

132 


PUBLIC  OFFICERS.  532-534 

532.  Paper,  how  to  he  supplied. 

Sec.  532.  In  July  of  each  year  the  superintendent  of  state  printing  shall  sub- 
mit to  the  state  board  of  examiners  samples  of  the  various  kinds,  sizes,  and 
qualities  of  paper  that  will  probably  be  required  in  his  office  during  the  year 
commencing  on  the  then  next  first  Monday  in  October,  an  estimate  of  the  proba- 
ble quantity  of  each  kind,  size,  and  quality  that  will  be  so  required.  Upon 
being  satisfied  that  the  kinds,  sizes,  quantities,  and  qualities  of  paper  so  sug- 
gested will  be  required,  they  shall  direct  the  superintendent  of  state  printing 
to  advertise  for  thirty  days  in  one  dail}^  newspaper  published  in  the  city  of  San 
Francisco,  one  in  New  York  city,  and  one  daily  new^spaper  published  in  the  city 
of  Sacramento,  for  proposals  to  furnish  such  paper,  or  so  much  thereof  as  may 
be  required  during  the  year  commencing  as  aforesaid,  which  bids  shall  be 
opened  in  his  office  at  twelve  o'clock  si.  on  the  day  appointed,  in  the  presence 
of  the  said  superintendent  and  at  least  two  of  the  state  board  of  examiners;  and 
the  state  board  of  examiners  and  the  said  superinteudent  of  state  printing  shall 
constitute  a  board  to  award  the  contract  to  the  lowest  responsible  bidder.  No 
bid  shall  be  considered  unless  accompanied  by  a  certified  check  in  the  sum  of 
two  thousand  dollars,  gold  coin,  payable  to  the  governor  for  the  use  of  the 
people  of  the  State  of  California,  conditioned  that  if  the  bidder  receives  the 
award  of  the  contract  he  will,  wdthin  thirty  days,  enter  into  bonds  in  the  sum 
of  ten  thousand  dollars,  with  two  or  more  sureties,  to  be  approved  by  the  gov- 
ernor of  the  state,  that  he  will  faithfully  perform  the  conditions  of  his  con- 
tract. AH  bids  must  be  for  the  furnishing  and  delivery  of  the  paper  and  mate- 
rials at  the  state  printing  office  in  the  city  of  Sacramento,  so  that  the  state  shall 
not  be  charged  with  any  cost  of  transportation  or  delivery,  which  must  be 
specified  in  the  advertisement  for  bids.  If  all  the  bids  opened  shall  be  deemed 
too  high  by  said  board,  they  may  decline  them  and  advertise  again.  If  the 
second  set  of  bids  are  considered  too  high,  the  said  board  may  again  decline 
them,  and  may  purchase  said  paper  in  open  market.  The  prices  paid  by  the 
board  shall  in  no  case  be  higher  than  the  lowest  price  at  which  such  paper  was 
offered  to  be  furnished  by  the  bids  so  rejected.  [Ameyidmenf ,  approved  Aprils, 
1876;  Amendments  1875-6,  19;  took  effect  from  passage}"'' 

533.  Ruling,  folding,  binding,  etc. 

Sec.  533.  All  ruling,  folding,  and  folding  and  stitching,  and  binding  required 
to  be  executed  for  the  state,  shall  be  done  under  the  supervision  of  said  superin- 
tendent. He  shall  advertise  for  thirty  days  in  one  daily  newspaper  published 
in  the  cit}^  of  San  Francisco,  and  one  daily  newspajDcr  published  in  the  city  of 
Sacramento,  specifying  the  character  of  the  binding,  folding,  and  stitching  to  be 
bid  upon,  for  proposals  to  do  all  such  folding,  folding  and  stitching,  ruling  and 
binding,  all  of  which  work  shall  be  done  in  the  city  of  Sacramento,  and  on  the 
day  appointed  he  shall,  in  the  presence  of  the  board  of  examiners,  open  the 
bids  that  may  be  received,  and  said  superintendent  of  state  printing  and  said 
board  of  examiners  shall  award  said  contract  to  the  lowest  responsible  bidder 
or  bidders  therefor.  [Amendment,  approved  April  3,  1876;  Amendments  1875-6, 
20;  took  effect  from  passage}"^ 

534.  Salarij. 

Sec  534.  The  superintendent  of  state  printing  shall  receive  a  salary  of 
twenty-four  hundred  dollars  per  annum,  payable  monthly,  out  of  any  money  in 

(a)  The  original  sections  530,  531,  532,  533,  534,  fiSS,  ing  the   amendments   to   the    above-named   sections. 

536  and  537  rel;;ted  to  the  compensation  of  the  state  See  section  n38. 

printer.    They  weresiipersededby"  An  Act  to  establish  As  the  original  sections  throw  no  light  upon  the 

a  state  printing  office  and  to  create  the  office  of  super-  amendments,  and  are  consequently  unimportant,  they 

Intendent  of  state  printing,"  approved  March  26,  1872;  are  omitted. 
1871-2,  554.    This  act  was  repealed  by  the  act  contain- 

133 


534-538  POLITICAL  CODE. 

the  general  fund  not  otherwise  appropriated.     [Aviendmenf ,  approved  April  3, 
1876;  Amendmerds  1^1^-Q>,  20;  took  efftxi  from  passage}"'' 

535.  Appropriation  for  repairs  of  machinery . 

Sec.  535.  Whenever  any  appropriation  is  made  for  the  support  of  the  state 
printino-  office,  a  sum  not  exceeding  one  thousand  dollars  thereof  shall  be  ap- 
jjlied,  when  necessary,  to  and  used  for  the  jDUi-j^ose  of  repairing  the  present  and 
purchasing  new  machinery  of  the  state  printing  office,  in  each  fiscal  year  for 
which  the  approj^riation  is  made.  [Amendment,  approved  April  3,  1876;  Amend- 
wien/s  1875-6,  20;  took  effect  from  passage.'-"'' 

536.  Appropriation  for  contingent  expenses,  etc. 

Sec.  536.  Whenever  any  money  is  approjjriated  for  the  sup^Dort  of  the  state 
printing  office,  a  sum  not  exceeding  the  sum  of  one  thousand  dollars  thereof 
shall,  in  each  fiscal  year  for  which  the  appropriation  is  made,  be  ajDplied  to  and 
used  for  the  purpose  of  paying  wages  to  employees  temporarily  emjiloyed,  Avhen 
the  amount  due  any  employee  shall  be  for  less  than  a  week's  work,  and  other 
contingent  expenses  of  the  state  printing  office.  The  superintendent  of  print- 
ing shall  keep  an  itemized  account  of  all  expenditures  chargeable  against  the 
sum  of  money  mentioned  in  this  and  the  next  preceding  section,  and  none  of 
said  money  shall  be  drawn  from  the  treasury  except  upon  the  warrant  of  the 
controller.  The  controller,  so  long  as  there  is  any  of  the  money  remaining  in 
any  one  year  in  the  treasury,  upon  the  presentation  to  him  of  an  itemized  claim 
verified  by  the  oath  of  the  superintendent  of  printing,  shall  draw  his  warrant 
on  the  treasurer  for  the  same,  specifying  in  said  warrant  that  it  is  payable  out 
of  the  fund  provided  in  this  or  the  preceding  section,  and  the  treasurer  shall 
pay  the  same  on  presentation.  [Amendment,  ajiproved  April  3,  1876;  Amend- 
ments 187  o-6,  21;  took  effect  from  passage  .'^^ 

537.  Payment  of  wages  and  salaries. 

Sec.  537.  The  state  treasurer  is  hereby  authorized,  when  the  genei-al  fund  is 
exhausted,  to  advance  the  money  on  the  controller's  warrants,  drawn  for  wages 
and  salaries  of  the  employees  in  the  state  printing  office,  out  of  any  pubUc 
funds  in  the  treasury,  which  warrants  shall  be  his  vouchers  until  there  is  money 
in  the  general  fund  to  cancel  them;  provided,  that  this  section  shall  not  apply 
to  any  fund  against  Avhich  there  are  any  warrants  then  due,  or  to  become  due, 
or  so  as  to  keep  claimants  out  of  their  just  demands.  Any  sum  of  money  re- 
maining unexpended  of  the  ajipropriation  heretofore  made  for  the  purchase  of 
materials  for  the  state  printing  office  is  hereby  appropriated  to  the  payment  of 
claims  due  for  the  construction  of  the  state  jirinting  office.  [Amendment,  ap- 
jyroved  April  3,  1876;  Amendments  1875-6,  21;  took  efectfrom  passage. '-'''' 

538.  C']iart.<,  ma])S,  diagrams,  engraving  and,  lithographs. 

Sec.  538.  When  any  chart,  map,  diagram,  or  other  engraving  shall  be  re- 
quired to  illustrate  any  document  oi'dered  to  be  printed,  such  chart,  map, 
diagi'am,  or  engi-aving,  shall  be  i:)rocured  b}''  the  superintendent  of  state  print- 
ing, under  the  direction  of  the  board  of  examiners.  No  bills  for  engraving  or 
lith(jgrai)hing,  or  lithograph  printing,  other  than  the  above,  shall  be  alloAved 
by  the  board  of  examiners;  and  the  superintendent  of  state  printing  shall  ascer- 
tain the  whei-eabouts,  and  obtain  all  lithograph  and  other  property  of  a  similar 
nature  belonging  to  the  state,  and  preserve  them.     All  state   printing  shall  be 

(II)  TbC)  oriKinal  BcctidnH  530,  .531,  r)32,  533,  5.3i,  53.'3,  ing  the   amendmcuts  to   tho  above-named    sections. 

63f;  find  .',37  nlatid  to  t)je  (■oiiii)enKiitioii  of  the  stnte  Sec  section  53S. 

printer.    They  were  KUiierscded  by  "An  Act  to  establish  As  the  original  sections  throw  no  light  upon  the 

a  state  printing  office  and  to  i-reate  the  office  of  Kupcr-  amendments,  and  are  consequently  unimportant,  they 

intendent  of  state  printing,"  approved  March  20,  1H72;  are  omitted. 
1871-2,  554.     This  act  was  repealed  by  the  act  contain- 

134 


PUBLIC  OFFICEES.  538 

done  in  the  state  printing  office.     [Neiv  section,  approved  April  3,  1876;  Amend- 
ments 1875-6,  21;  took  effect  from  passage. 

Au  Act  to  ameud  the  political  aucl  penal  codes,  concerning  public  printing,  and  for  other 

purjjoses. 

Approved  April  3, 1876;  Amendments  1875-6, 16. 

[The  first  twelve  sections  of  this  act  contain  the  amendments  to  sections  526, 
528,  530,  531,  532,  533,  534,  535,  536  and  537  of  the  Political  Code,  and  the 
new  sections  538  of  the  Political  Code  and  99  and  100  of  the  Penal  Code  therein 
inserted.     It  has  an  additional  section  as  follows:] 

Acts  repealed. 

Sec.  13.  An  act  entitled  "  An  Act  to  provide  for  the  fitting  up  and  use  of  the 
governor's  mansion  as  a  state  printing  office  and  state  armory,"  approved  March 
30,  1874,  and  also  an  act  entitled  "An  Act  to  establish  a  state  printing  office, 
and  to  create  the  office  of  su^perintendent  of  state  printing,"  approved  March 
26,  1872,  are  hereby  repealed.  This  act  shall  take  effect  and  be  in  force  from 
and  after  its  passage. 

An  Act  for  the  support  of  the  state  printing  ofl&ce. 

Approved  December  22,  1875;  1875-6,  '4. 

Money  appropriated  for  contingent  expenses. 

Section  1.  The  sum  of  one  thousand  dollars  is  hereby  appropriated,  out  of 
any  money  in  the  state  treasury  not  otherwise  appropriated,  for  the  contingent 
expenses  of  the  superintendent  of  state  printing  for  the  twenty-seventh  fiscal 
year;  for  the  payment  of  postage,  expressage,  freighting,  telegraphing,  and 
wages  due  employees,  when  the  amount  due  any  employee  shall  be  for  less  than 
a  week's  work. 

Appropriation  for  support  of. 

Sec  2.  The  sum  of  forty  thousand  dollars  is  appropriated  out  of  the  general 
fund  for  the  suj)port  of  the  state  printing  office  for  the  twenty-seventh  fiscal 
year. 

To  report  to  board  of  examiners — Account  and  report  to  be  voucher. 

Sec.  3.  The  superintendent  must  report  to  the  board  of  examiners,  at  each 
meeting  of  the  board,  the  name  of  each  employee  in  his  office  and  the  amount 
due  him  for  labor;  and  if  the  board  audit  the  same  the  controller  must  draw  a 
warrant  in  favor  of  such  employee  for  the  amount  due,  and  the  audited  account 
and  report  of  the  superintendent  shall  be  the  voucher  to  the  controller  for  all 
the  warrants  drawn  therefor. 

When  to  advance  money  out  of  public  funds. 

Sec  4.  The  state  treasurer  is  hereby  authorized,  when  the  general  fund  is 
exhausted,  to  advance  the  money  on  the  controller's  warrants  drawn  for  wages 
and  salaries  of  the  employees  in  the  state  printing  office  out  of  any  public 
funds  in  the  treasury,  which  warrants  shall  be  his  vouchers  until  there  is  money 
in  the  general  fund  to  cancel  them;  provided,  that  this  section  shall  not  apply 
to  any  fund  against  which  there  are  any  warrants  then  due  or  to  become  due, 
or  so  as  to  keep  claimants  out  of  their  just  demands. 

Sec  5.  This  act  to  take  effect  immediately. 

An  Act  to  appropriate  moneys  for  the  i^urpose  of  insuring  the  state  printing  office. 
Approved  March  17,  1876;  1875-6,  327. 

[This  act  appropriated  eleven  hundred  dollars  for  the  j^urpose  of  insuring  the 
building  known  as  the  governor's  mansion,  now  used  as  the  state  printing 
office,  and  the  materials  therein.] 

135 


548-554  POLITICAL  CODE.  ^ 

ARTICLE  XIII. 

STATE    GEOLOGIST. 

548.  General  duties  of. 

Sec.  548.  It  is  the  duty  of  the  state  geologist,  with  the  aid  of  such  assistants 
as  he  may  appoint,  to  continue  and  with  all  reasonable  diligence  to  complete 
the  geological  sun-ey  of  this  state.  He  must  also  prepare  a  report  of  the 
survey  and  superintend  the  publication  thereof  in  the  form  of  a  geological, 
botanical,  zoological,  and  physiographical  history  of  the  state,  with  full  and 
scientific  descriptions  of  its  rocks,  fossils,  soils,  minerals,  mines,  climates  and 
physical  geography,  together  with  suitable  and  accurate  geological  and  topo- 
graphical maps  and  diagrams  of  the  same. 

549.  Report  to  governor. ' 

Sec.  549.  He  must,  as  near  as  may  be  at  the  beginning  of  each  session  of  the 
legislature,  present  to  the  governor,  who  must  lay  the  same  before  the  legisla- 
ture, a  report  of  progress  in  w^hich  the  operations  of  the  geological  survey 
during  the  interval  since  his  last  preceding  report  must  be  set  forth,  and  its 
most  important  results  made  public. 

550.  Specimens  to  he  delivered  to  university. 

Sec.  550.  The  geological  and  other  S2:>ecimens  collected  by  the  state  geologi- 
cal survey  must,  excepting  such  as  may  be  required  by  the  state  geologist  to 
aid  in  the  prei^aration  of  his  report,  be  delivered  over  to  the  regents  of  the  state 
university,  to  be  by  them  deposited  in  the  cabinet  of  the  same  as  the  property 
of  the  university. 

551.  Salary  of  geologist. 

Sec  551.  The  annual  salary  of  the  state  geologist  is  six  thousand  dollars, 
payable  monthly  out  of  any  ai^propriations  which  may  be  made  by  the  legisla- 
ture for  the  continuation  of  the  work  of  the  survey. 

552.  Compensation  of  assistants. 

Sec.  552.  His  assistants  receive  such  compensation  as  he  may  determine, 
payable  in  the  same  manner  out  of  the  same  fund. 

553.  Board  of  examiners  to  audit  accounts. 

Sec  553.  The  accounts  of  the  state  geologist,  including  salaries  and  all  other 
expenses  of  the  survey,  must  be  audited  by  the  board  of  examiners,  and,  if 
found  coiTcet,  must  be  paid  out  of  the  state  treasury  in  such  manner  as  may  be 
provided  by  law. 

554.  Reports  and  maps  to  he  sold,  etc. 

Sec.  554.  The  volumes  and  maps  of  the  rei^ort  must  be  sold  upon  such  terms 
as  the  governor  deems  to  be  most  advantageous  to  the  state,  and  any  moneys 
derived  from  such  sales  must  be  applied  to  the  completion  of  the  unfinished 
publications  of  the  sun^ey,  and  the  surplus,  if  any,  must  be  paid  into  the 
common  school  fund  of  the  state. 

An  Act  to  authorize  the  distribution  of  the  reports  of  the  state  geological  survey. 
Approved  February  2,  1872;  1871-2,  55. 

Reports  for  foreign  nations. 

Section  1.  On  the  application  of  any  consul  residing  in  the  city  of  San  Fran- 
cisco, and  representing  an  European  government,  to  the  governor  of  the  State 
of  California,  requesting  a  set  of  the  reports  of  the  state  geological  survey,  to 
be  deposited  in  some  well-known  and  established  scientific  or  literary  institu- 
tion under  the  control  of  the  government  of  which  he  is  the  accredited  rej)re- 
sentative,  an  order  may  issue  from  the  governor  to  the  secretary  of  state  or  the 
state  geologist,  as  the  case  may  be,  directing  them  to  fui-nish  one  such  set 

136 


JPUBLIC  OFFICEKS.  554 

of  reports  only  to  each  nation  having  a  consul  residing  in  San  Francisco ;  pro- 
vided further,  that  the  state  superintendent  of  public  instruction  shall  be 
furnished,  on  demand  on  the  secretary  of  state  and  the  state  geologist,  with 
one  set  for  the  state  normal  school,  two  sets  for  the  state  university,  and  two 
sets  for  the  state  library. 

Delivery  of  reports. 

Sec.  2.  The  secretary  of  state  or  the  state  geologist,  on  the  presentation  of 
such  order,  shall  deliver  to  the  party  therein  named  such  set  or  parts  of  set  of 
the  rejDorts  of  the  state  geological  survey  as  may  be  designated,  taking  his 
receii:>t  therefor.  They  shall  annually,  on  the  first  day  of  September  of  each 
year,  rej^ort  t-o  the  governor  the  number  of  volumes  so  issued,  at  whose  request, 
and  to  what  institution  presented. 

Sec.  3.  This  act  shall  take  effect  immediately.  • 

An  Act  suiDplementary  to  the  above  act. 

Approved  April  1,  1872;  1871-2,  924. 

Distribution  in  United  States. 

Section  1.  Of  each  of  the  volumes  and  maps  of  the  state  geological  survey 
already  published,  or  which  may  be  hereafter  published,  one  hundred  coj^ies 
shall  be  deposited  at  the  office  of  the  secretary  of  state  by  the  state  geologist, 
subject  to  the  order  of  the  governor,  for  gi'atuitous  distribution  to  the  various 
state  and  territorial  libraries,  to  j^ublic  libraries,  and  to  the  libraries  of  uni- 
versities, colleges,  and  learned  societies  in  the  United  States. 
Distribution  in  foreign  countries. 

Sec  2.  One  hundred  copies  of  the  same  may  be  distributed  by  the  state 
geologist  to  public  libraries  and  learned  institutions  in  foreign  countries,  to  the 
ofiicers  of  other  geological  sui-veys,  and  to  joersons  who  may  have  rendered 
sj)ecial  services  to  the  geological  survey  of  California. 

County  Clerks. 

Sec  3.  On  application  by  the  county  clerks  of  the  respective  counties  to  the 

\8tate  geologist,  one  coj)y  of  each  of  same  shall  be  given  to  each  county  in  the 

State  of  California,  to  be  deposited  and  kept  with  the  county  records,  and  to  be 

accessible  at  all   reasonable  hours  for  inspection  by  the  general  public,  the 

county  clerk  being  held  responsible  for  the  safe  keeping  of  the  same. 

Record  of  distribution. 

&EC.  4.  The  secretaiy  of  state  and  the  state  geologist  shall  each  keep  a 
record  of  the  volumes  and  maps  thus  distributed,  specifying  the  names  of  the 
institutions  or  individuals  to  whom  the  same  are  given,  and  the  state  geologist 
shall  biennially  communicate  such  record  as  kept  by  him  to  the  office  of  the 
secretai-y  of  state,  where  a  complete  record  of  the  distribution  herein  provided 
for  shall  be  preserved. 

Sec.  5.  No  j)erson  or  institution  shall  receive  more  than  one  copy  of  each  vol- 
ume or  map,  under  the  provisions  of  this  act. 

Sec.  6.  This  act  shall  take  effect  immediately. 

An  Act  to  continue  the  geological  survey  of  the  State  of  California. 
Approved  March  13,  1872;  1871-2,  355. 

Completion  of  survey. 

Section  1.  It  shall  be  the  duty  of  the  state  geologist  to  proceed  and  with  all 
reasonable  diligence  complete  the  geological  survey  of  this  state,  and  the  publi- 
cation of  the  results  thereof. 

Appropj'iation. 

Sec  2.  The  sum  of  two  thousand  dollars  per  month,  payable  monthly  for  the 

137 


554-561  POLITICAL  CODE., 

l^eriod  of  two  years  froin  and  after  the  twenty-fifth  day  of  March,  a.  d.  eighteen 
hundred  and  seventy-two,  is  hereby  appropriated  out  of  any  money  in  the  treas- 
tuy  not  othenvise  ai^propriated,  to  joay  the  exjjenses  of  said  survey  and  publica- 
tion, and  the  controller  is  hereby  directed  to  draw  his  warrants  upon  the 
treasurer  and  in  favor  of  the  state  geologist  therefor. 
Sec.  3.  This  act  shall  take  efl'ect  immediately. 

[A  concurrent  resolution  was  adopted  March  25,  1874;  1873-4,  992,  requesting 
the  late  state  geologist  to  return  to  the  state  all  si)eeimens  collected  b}^  him  as 
such  geologist,  and  that  they  be  jjlaced  in  the  possession  of  the  state  university 
for  the  use  and  benefit  of  the  university.] 

An  Act  to  provide  for  the  i3reservation  of  the  material  of  the  geological  survey  of  California. 
Approved  March  27,  1874;  1873-4,  094. 

State  geologist. 

Section  1.  It  shall  be  the  dut}'  of  the  state  geologist  to  deliver  to  the  presi- 
dent of  the  university  of  California,  at  Berkeley,  in  this  state,  all  instruments, 
accoutrements,  furniture,  property,  maps,  books,  drawings,  manuscripts,  notes, 
engra\dngs,  lithographic  stones,  wood-cuts,  field  notes  and  other  material  of 
every  description  and  nature  belonging  or  ajDpertaining  to  the  geological  survey 
of  California;  such  surrender  and  delivery  to  be  made  without  delay. 

Jlegenfs. 

Sec  2.  The  regents  of  the  university  of  California  shall  safely  keep  and  pre- 
serve, at  the  said  university,  all  the  proijerty  and  material  referred  to  in  section 
one  of  this  act,  until  such  time  as  the  legislature  may  direct  otherwise. 

Appi'ojyriation. 

Sec.  3.  The  sum  of  five  thousand  dollars  is  hereby  approjDriated  out  of  any 
money  in  the  general  fund  not  othenvise  ai:)propriated,  to  pay  the  necessary  cost 
of  arranging,  packing,  transporting  and  delivering  the  said  jn-operty  and  mate- 
rial; and  the  controller  shall  draw  his  warrant  or  warrants  for  such  purpose, 
not  to  exceed  said  sum  of  five  thousand  dollars,  when  directed  to  do  so  by  the 
state  board  of  examiners,  and  the  treasm-er  shall  pay  the  same. 

Bejjorts. 

Sec.  4.  The  regents  of  said  imiversity  shall  keep  on  hand  and  ofi'er  for  sale 
all  volumes  of  reports  and  maps  published  b}'  said  geological  survey;  they  may 
also,  as  soon  as  the  present  sujjply  of  reports  and  maps  is  exhausted,  cause 
any  jiortion  of  the  same  to  be  rej^ublished  and  sold  at  the  prices  now  jn-ovided 
or  that  may  hereafter  be  provided  by  law;  provided,  that  said  republication  shall 
be  done  without  cost  to  the  state;  provided  further,  that  the  proceeds  of  tlu  sale 
of  all  such  maps  and  reports,  over  and  above  the  cost  of  republication,  shall  be 
paid  in  to  the  state  treasurer  and  by  him  credited  to  the  school  fund  of  tha  state. 

Sec  5.  This  act  shall  take  efiect  immediately. 

ARTICLE  XIV. 

SEALERS  OF  WEIGHTS  AND  MEASURES. 

561.   General  duties  of. 

Sec.  501.  The  state  sealer  of  weights  and  measures  has  the  general  sujoer- 
vision  of  the  weights  and  measures  of  the  state.  He  must  take  charge  of  the 
standards,  and  see  that  they  are  kept  in,  and  in  no  case  removed  from,  a  fire- 
proof vault  in  his  office,  except  for  the  purpose  of  comi)aring  and  copying.  He 
must  correct  the  standards  of  the  cities  and  counties,  provide  them  with  the 
necessaiy  standards,  balances,  and  other  means  of  adjustment,  and  as  often  as 
once  in  ten  years  comijare  the  same  with  those  in  his  possession. 

138 


PUBLIC  OFFICERS.  5G2-580 

562.  County  clerks  ex  officio  sealeis. 

Sec.  5G2.  The  county  clerks  are  ex  officio  county  sealers  of  weights  and 
measures  for  their  respective  counties. 

563.  Duties  of  county  sealers. 

Sec.  5G3,  The  county  sealers  must  keep  in  their  offices  the  standards  of 
■weights  and  measures  for  their  respective  counties. 

564.  Standards  for  county  sealers. 

Sec.  564.  Copies  of  the  original  standards,  to  be  made  of  such  material  as 
the  state  sealer  directs,  must  be  deposited  by  him  in  the  office  of  the  county 
sealers  of  the  several  counties  of  this  state  at  the  expense  of  the  counties,  which 
are  severally  responsible  for  the  preservation  of  the  copies  respectively  delivered 
to  them. 

565.  Standards  to  be  marked. 

Sec.  565.  The  state  sealer  must  cause  to  be  impressed  on  each  of  the  copies 
of  such  original  standards  the  letter  "  C,"  and  such  other  device  as  he  may 
direct  for  the  particular  county,  which  device  must  be  recorded  in  the  state 
sealer's  office,  and  a  copy  thereof  delivered  to  the  respective  county  sealers. 

566.  Standards,  county  sealers  to  compare,  etc. 

Sec.  566.  The  county  sealers  must  compare  all  weights  and  measures  which 
are  brought  to  them  for  that  purpose  with  the  copies  of  standards  in  their 
possession,  and  when  the  same  are  found  or  made  to  conform  to  the  legal 
standards,  the  officer  comparing  them  must  seal  and  mark  them  as  correct. 

567.  Fees. 

Sec.  567.  Each  county  sealer  may  receive  for  his  services  the  following  fees: 
For  sealing  and  marking  every  beam,  seventy -five  cents;  for  sealing  and  mark- 
ing measures  of  extension,  at  the  rate  of  forty  cents  per  yard,  not  to  exceed  one 
dollar  and  a  half  for  any  one  measure;  for  sealing  and  marking  every  weight, 
twenty-five  cents;  for  sealing  and  marking  liquid  and  dry  measures,  if  the  same 
are  of  the  capacity  of  a  gallon  or  more,  forty  cents;  if  less  than  a  gallon,  twenty 
cents. 

ARTICLE  XV. 

INSPECTOB    OF    GAS    METERS. 

577.  To  provide  testing  apparatus. 

Sec.  577.  The  inspector  of  gas  meters  must  provide  and  keep  suitable  appa- 
ratus for  testing  the  accuracy  of  gas  meters. 

578.  Seal. 

Sec.  578.  He  must  j)rovide  a  suitable  seal  with  which  to  seal  meters  inspected 
by  him  and  found  to  be  correct,  and  must  file  a  copy  of  such  seal  in  the  office 
of  the  secretary  of  state. 

579.  May  appoint  deputies. 

Sec.  579.  He  may  aj)point  dejraties. 

580.  Must  inspect  meters,  ivhen. 

Sec.  580.  He  must,  whenever  requested,  inspect  and  test  the  accuracy  of  any 
gas  meters  used  or  intended  to  be  used  for  measuring  the  quantity  of  gas  fur- 
nished by  any  gas  company  in  this  state,  and  when  he  finds  the  same  correct, 
seal  the  same  with  his  seal.  No  meter  shall  be  accounted  correct  which  regis- 
ters an  amount  more  than  three  per  cent,  greater  or  less  than  the  amount  actually 
jiassed  through  it,  but  the  inspector  may  seal  meters  registering  more  than 
three  per  cent,  against  the  gas  company,  when  requested  by  the  company  to  do 
so.     Reasonable  notice  shall  be  given  to  the  aj)plicant,  and  also  the  individual 

139 


580-595  POLITICAL  CODE. 

or  gas  company  furuisbing  or  proposing  to  fnrnisli  the  gas,  of  the  time  and 
place  of  the  inspection  of  the  meter,  and  opportunity  afforded  them,  their  ser- 
vants or  agents,  to  be  present  at  and  witness  the  inspection.  [^Ameyidmenf ,  ap- 
jii'oved  April  1,  1876;  Amendments  1875-G,  22;  took  effect  immediatehj^^'' 

581.  Rein^peciion. 

Sec.  581.  Any  individual,  or  gas  company,  placing  or  using  for  measuring  gas 
a  meter  which  has  not  been  inspected  by  the  state  inspector,  and  does  not  bear 
his  seal,  shall  be  guilty  of  a  misdemeanor,  nor  shall  any  charge  for  gas  sup- 
l)lied  through  such  a  meter  be  legally  collectible;  nor  shall  the  refusal  of  a 
consumer  to  pay  the  same  give  authority  to  the  company  to  refuse  to  supply  him 
with  gas.  When  a  meter,  properly  sealed,  is  once  placed  for  the  use  of  a  con- 
sumer, an  inspection  may  be  had  as  often  as  the  consumer  may  request  the  same 
in  writing,  he  to  i:)ay  the  fee  therefor  whenever  the  meter  is  found  not  to  register 
too  fast.  When  the  meter  is  found  to  register  too  fast,  the  gas  company  must  pay 
the  fee,  together  with  the  cost  of  removing  and  resetting  the  meter,  and  the 
inspector  shall  remove  the  seal  if  there  be  one  upon  it;  provided,  that  when 
any  meter  found  incorrect  shall  be  corrected,  it  shall  be  sealed  by  the  inspector 
without  additional  charge,  if  iDresented  to  him  for  reijispection  within  one 
month.  [Amendment,  approved  April  1,  1870;  Amendments  1875-G,  22;  tooh 
effect  immediatelij}^^ 

582.  Compensation. 

Sec.  582.  He  may  collect  a  fee  of  two  dollars  and  fifty  cents  for  each  meter 
tested. 

583.  Residence. 

Sec.  583.  He  must  reside  in  the  city  of  San  Francisco. 

584.  Official  bond. 

Sec,  58i.  He  must  execute  an  official  bond  in  the  sum  of  five  thousand  dollars. 


AKTICLE  XVI. 

INSUKAXCE    COMMISSIONER. 

594.  Eligibility. 

Sec.  594.  No  person  is  eligible  to  the  office  of  insurance  commissioner  or 
deputy  who  is  an  officer,  agent,  or  emplo^'ee  of  an  insurance  company, 

595.  General  duties  of  insurance  commissioner. 

Sec  595.  The  insurance  commissioner  must  receive  all  bonds  and  securities  of 
persons  engaged  in  the  transaction  of  insurance  business  in  this  state,  and  file 
and  safely  keep  the  same  in  his  office,  or  deposit  them  as  provided  in  this  arti- 
cle. He  must  examine  and  inspect  the  financial  condition  of  all  persons  en- 
gaged, or  who  desire  to  engage,  in  the  business  of  insurance;  issue  a  certificate  of 
authority  to  transact  insurance  business  in  this  state  to  any  persons  in  a  solvent 
condition  who  have  full^^  complied  with  the  laws  of  this  state;  determine  the 
sufficiency  and  validity  of  all  bonds,  and  other  securities,  required  to  be  given  by 
persons  engaged  or  to  be  engaged  in  insurance  business,  and  cause  the  same 
to  be  renewed  in  case  of  the  insufficiency  or  invalidity  thereof;  and  perform  all 
other  duties  imposed  upon  him  by  the  laws  regulating  the  business  of  insurance 

(a)  Original  section:  (6)  Original  section: 

Skc.  580.  He  inuBt,  whenever  requefited,  inspect  and  Skc.  581.  When  a  meter,  properly  sealed,  is  once 
test  the  accuracy  of  any  giis  meters  used  or  intended  to  placed  for  the  use  of  a  consumer,  an  inspection  maybe 
be  used  for  measuring  the  quantity  of  gas  furnished  had  as  often  as  the  consumer  may  reiiuest  tlic  same  in 
by  any  gas  company  in  this  state,  and  when  he  finds  writing;  he  to  pay  tlie  fee  therelor  whrniver  and  as 
the  same  to  be  correct,  or  when  he  has  corrected  the  often  as  the  meteris  found  to  register  correctly.  When 
same  if  found  incorrect,  seal  the  same  with  his  seal.         proved  to  be  in<v)rre(t.  the  gas  company  must  pay  the 

same,  tugeUnr  with  the  costs  and  expenses  of  remov- 
ing and  resetting  the  same. 

no 


PUBLIC  OFFICEES.  595-597 

ill  this  state,  and  enforce  the  execution  of  such  laws;  prepare  and  furnish  on 
demand,  to  all  persons  engaged  in  the  insurance  business,  blank  forms  for  such 
statements  or  reports  as  may  Ijy  law  be  required  of  them;  make,  on  or  before 
the  first  day  of  August,  in  each  year,  a  report  to  the  governor  of  this  state,  con- 
taining a  tabular  statement  and  synopsis  of  the  reports  which  have  been  filed 
in  his  office,  showing  generally  the  condition  of  the  insurance  business  and  in- 
terests in  this  state,  and  other  matters  concerning  insurance,  and  a  detailed 
statement,  verified  by  oath,  of  the  moneys  and  fees  of  office  received  by  him, 
and  for  what  purpose.  And  whenever  any  insurance  company  doing  business 
in  this  state  shall  voluntarily  surrender  to  the  insurance  commissioner  its  cer- 
tificate of  authority  previously  granted,  thereby  withdrawing  from  business  in 
the  state,  the  commissioner  must  make  due  publication  of  such  surrender  and 
withdrawal,  daily,  for  the  period  of  one  month,  in  some  newspaper  published 
in  the  city  of  San  Francisco.  [Amendment,  aiyproved  March  30,  1874;  Ameyid- 
■ments  1873-4,  8;  took  effect  July  6,  1874.*'" 

596.  Business  of  insurance  not  to  he  transacted  without  certificate. 

Sec.  596.  No  person  must  transact  insurance  business  in  this  state  without  first 
procuring  from  the  insurance  commissioner  a  certificate  of  authority,  as  in  this 
chajiter  provided;  and  all  policies  issued  or  renewed  and  all  insurances  taken 
before  obtaining  such  certificate  of  authority,  are  null  and  void;  and  any  j^erson 
issuing  or  renewing  a  policy  without  such  certificate  shall  forfeit  to  the  j^eople 
of  the  State  of  California  the  sum  of  one  hundred  dollars  for  each  jwlicy  so 
issued  or  renewed,  to  be  collected  by  the  insurance  commissioner  in  the  man- 
ner prescribed  in  section  five  hundred  ninety-eight  of  this  code.  But  any 
company  or  corj^oration  belonging  to  any  other  state  or  country  having  policies 
of  life  insurance  outstanding  in  this  state,  and  that  were  issued  in  accordance 
with  the  laws  of  the  state,  shall  have  the  right  to  maintain  an  agent  in  this  state 
for  the  collection  of  renewal  premiums  on  such  policies;  and  the  commissioner 
is  hereby  authorized  to  issue  to  the  duly  appointed  agent  of  such  company  or 
corporation  a  certificate,  authorizing  him  to  collect  such  premiums.  But  the 
company  or  corporation  must  satisfy  the  commissioner  that  it  is  authorized  to 
transact  insurance  business  in  the  state  to  which  it  belongs.  The  agent  must, 
on  or  before  the  tenth  day  of  January,  in  each  year,  file  with  the  commissioner 
a  statement,  under  oath,  showing  the  gross  amount  of  premiums  collected  by 
him  during  the  year  ending  on  the  thirty-first  day  of  December  next  preceding; 
and  upon  filing  such  statement,  he  must  pay  into  the  office  of  the  commissioner 
the  svim  of  twenty  dollars  in  gold  coin  of  the  United  States.  [Amendment, 
approved  March  2)^ ,  1874;  Amendments  1873-4,  61;  took  effect  sixtieth  day  after 
passage}^^ 

597.  To  examine  affairs  of  companies,  when. 

Sec.  597,  The  commissioner,  whenever  necessary,  or  whenever  he  is  requested 
by  verified  petition,  signed  by  three  persons  interested,  either  as  stockholders, 
policy  holders,  or  creditors  of  any  2^ei"son  engaged  in  insurance  business, 
showing  that  such  person  is  insolvent  under  the  laws  of  this  state,  must  make 
examination  of  the  business  and  affairs  relating  to  the  insurance  business  of 
such  person;  and  for  such  purpose  has  free  access  to  all  the  books  and  j^apers 
of  such  person,  and  must  thoroughly  inspect  and  examine  all  his  affairs,  and 
ascertain  his  condition  and  ability  to  fulfill  his  engagements,  and  whether  he 

(a)  The  original  section  did  not  contain  the  last  sen-  first  full  sentence  of  the  above  amendment  down  to 

tence  of  the  above  amendment.  and  inchiding  the  words  "  of  this  code,"  omitting  the 

(6)  The  original  section  consisted  of  the  first  two  words  "  by  the  insurance  commissioner;  "  but  bj- oper- 

clauses  of  ,the  above  amendment  down  to  and  includ-  ation  of  section  117  of  the  amendatory  act  last  referred 

ing  the  words  "  null  and  void."  to  (see  Amendments  1873-4,  60;  post,  4457)  the  amend- 

The  section  was  amended  by  another  act  of  March  ment  given  in  the  text  superseded  the  original  section 

30,  1874  (Amendments  1873-4,  9)  so  as  to  read  like  the  and  the  other  ameudment  of  March  30,  1874. 

141 


597-601  POLITICAL  CODE. 

Las  complied  with  all  the  jn-ovisions  of  law  applicable  to  his  insurance  transac- 
tions. Such  person  and  his  officers  and  agents  must  open  his  books  and  pajiers 
for  the  inspection  of  the  commissioner,  and  otherwise  facilitate  such  examina- 
tion; and  the  commissioner  may  administer  oaths  and  examine  nnder  oath  any 
persons  relative  to  the  business  of  such  person,  and  if  he  finds  the  books  to 
have  been  carelessly  or  improperly  kej)t  or  posted,  he  must  employ  sworn 
experts  to  rewrite,  post,  and  balance  the  same,  at  the  expense  of  such  person. 
Such  examination  must  be  conducted  in  the  county  where  such  person  has  his 
princijial  place  of  business,  and  must  be  private,  unless  the  commissioner 
deems  it  necessary  to  publish  the  result  of  such  investigation,  in  which  case  he 
may  publish  the  same  in  two  of  the  jiublic  newspaj^ers  of  this  state,  one  of 
which  must  be  published  in  the  city  of  San  Francisco. 

598.  Fines  imposed  if  companies  refuse. 

Sec.  598.  The  commissioner  may  collect  the  sum  of  five  hundred  dollars  from 
any  person  engaged  in  the  business  of  insurance  for  each  refusal  to  give  full 
and  truthful  information  and  response  in  writing  to  any  inquiry  in  writing  T)y 
the  commissioner  relating  to  the  business  of  insurance  as  carried  on  by  him; 
and  for  that  purpose  suits  may  be  instituted  by  the  commissioner,  in  the  name 
of  the  people  of  the  State  of  California,  in  any  court  of  competent  jurisdiction. 

599.  May  issue  subpoenas. 

Sec  599.  The  commissioner  may  issue  subpoenas  for  witnesses  to  attend  and 
testify  before  him  on  any  subject  touching  insurance  business  or  in  aid  of  his 
duties,  which  must  be  served,  obeyed,  and  enforced  as  provided  in  the  Code  of 
Civil  Procedure  for  civil  cases,  the  commissioner  to  issue  attachments  and  im- 
pose the  penalty  for  disobedience;  and,  in  addition,  the  defaulting  witness  may 
be  punished  as  jDrovided  in  the  Penal  Code. 

600.  Proceedings  on  insolvency  of  companies. 

Sec  600.  "Whenever  the  commissioner  ascertains  that  any  person  engaged  in 
the  insurance  business  is  insolvent  within  the  meaning  of  this  chajoter,  he  must 
revoke  the  certificate  granted,  and  send  b}^  mail  to  such  person,  addressed  to 
him  at  his  principal  place  of  business,  or  deliver  to  him  personally,  notice  of  such 
revocation,  and  cause  notice  thereof  to  be  filed  in  his  office,  and  also  to  be  pub- 
lished daily  for  four  weeks  in  some  newspaper  published  in  the  city  of  San  Fran- 
cisco. He  must  require  such  person,  after  receiving  notice  of  the  revocation,  or 
after  the  first  publication  thereof,  to  discontinue  the  issuing  of  any  new  policies, 
and  the  renewal  of  any  previously  issued;  and  in  such  cases  must  require  the  per- 
son or  the  manager  or  agent  of  the  business  to  repair  the  capital  thereof  within 
such  jieriod  as  lie  may  designate  in  such  requisition,  by  assessment  upon  the 
stockholders  for  such  amounts  as  will  make  the  caj)ital  equal  to  the  amount  of 
the  paid-up  capital,  exclusive  of  assets  needed  to  pay  all  ascertained  liabilities 
for  losses  rejiorted,  for  expenses  and  taxes,  and  exclusive  of  the  entire  jyre- 
miums  received  for  outstanding  risks. 

601.  Proceedinrjs  xohen  this  vi  not  done. 

Sec  601.  In  case  any  person,  upon  the  requisition  of  the  commissioner,  fails 
to  make  up  the  deficiency  of  the  capital  in  accordance  with  the  requirements  of 
this  cliapter,  or  to  comply  in  all  resjDects  with  the  laws  of  this  state,  the  com- 
missioner must  communicate  the  fact  to  the  attorney-general,  who  must  com- 
mence an  action  in  the  name  of  the  people  of  this  state,  in  the  district  court  of 
the  judicial  district  where  the  person  in  question  is  located  or  has  his  principal 
office,  against  such  person,  and  apply  for  an  order  requiring  cause  to  be  shown 
why  the  business  should  not  be  closed;  and  the  court  must  thereupon  hear 
the  allegations  and  proofs  of  the  respective  parties,  as  in  other  cases.     If  it 

142 


PUBLIC  OFFICERS.  f.01-G04 

appears  to  the  satisfaction  of  the  court  that  such  person  is  insolvent,  or  that 
the  interests  of  the  public  so  require,  the  court  must  decree  a  dissolution  of  such 
corporation,  and  a  winding'  up  of  its  affairs  and  a  distribution  of  the  itVects  of 
such  person;  but  otherwise,  the  court  must  enter  a  decree  anniillin<,'  the  act  of 
the  commissioner  in  the  premises,  and  authoiizinrf  such  person  to  resume  busi- 
ness. But  the  commissioner  must  not  be  held  liable  for  damages,  if  he  has 
acted  in  good  faith.  In  the  event  of  any  additional  losses  occuning  upon  new 
risks  taken  after  the  expiration  of  the  period  limited  by  the  commissi(Uier  in 
the  requisition,  and  before  the  deficiency  has  been  filled  up,  the  directors  of 
any  company,  corporation,  or  association  are  individually  liable  to  the  extent 
thereof. 

602.  What  constitutes  insolvency. 

Sec.  602.  Whenever  provision  for  the  liabilities  of  any  person  engaged  in  the 
insurance  business  in  this  state  for  losses  reported,  expenses,  taxes,  and  rein- 
surance of  all  outstanding  risks  estimated  at  fifty  per  cent,  of  the  premiums 
received  and  receivable  on  all  fire  risks  and  marine  time  risks,  at  the  full 
premiums  received  and  receivable  on  all  the  marine  risks,  and  at  rates  for  life 
risks  based  upon  the  rates  of  mortality  established  by  the  American  Experience 
Life  Table,  and  interest  at  four  and  one  half  per  cent,  per  annum,  and  such 
rates  for  accident  and  other  kinds  of  insurance  as  are  accepted  by  the  insurance 
authorities  of  the  State  of  New  York,  would  so  far  impair  his  capital  stock  paid 
in  to  reduce  the  same  below  two  hundred  thousand  dollars  in  gold  coin  of  the 
United  States,  or  below  sixty  per  cent,  of  said  capital  stock  paid  in,  such  per- 
son is  insolvent;  and  in  the  case  of  a  person  thus  engaged  in  the  insurance 
business  in  this  state,  on  the  mutual  plan,  if  his  available  cash  assets  shall  not 
exceed  his  liabilities,  as  hereinbefore  enumerated,  in  the  full  sum  of  two  hun- 
dred thousand  dollars  in  United  States  gold  coin,  such  person  is  insolvent. 
[Amendment,  approved  March  30,  1874;  Amendments  1873-4,  62;  took  effect  July 
2,  1874.^^' 

603.  Must  keep  a  record. 

Sec.  608.  The  commissioner  must  keep  and  preserve,  in  a  permanent  form,  a 
full  record  of  his  proceedings,  including  a  concise  statement  of  the  condition  of 
each  person  visited  or  examined  by  him. 

604.  May  employ  actuary,  when. 

Sec.  604.  The  commissioner  may  employ  an  actuary  to  make  the  valuation  of 
life  policies,  at  the  comj^ensation  of  not  exceeding  three  cents  for  each  thousand 
dollars  of  insurance,  to  be  paid  by  the  person  or  corporation  for  which  the  val- 
uation is  made. 

(a)  Original  section:  Seo.  602.  Whenever  provision  for  the  liabilities  of 

Sec.  602.  Whenever  the  liabilities  of  any  person  en-  any  person  eIlf;!l^'Pl^  in  the  insurance  business  in  this 

gaged  in  the  insurauce  business,  for  losses  reported,  state,  for  losses  reported,  expenses,  taxes,  and  reinsur- 

expenses,  taxes,   and  reinsurance  of    all   outstanding  ance  of  all  outstanding   risks   estimated   iit  fifty  per 

risks,  estimated  at  fifty  per  cent,  of  the  premiums  re-  cent,  of  the  premiums  received  and  receivable  on  all 

ceived  on  fire  risks  and  marine  time  risks,  at  the  full  fire  risks  and  marine  time  risks,  at  the  full  premiums 

premiums  on  all  other  marine  risks,  and  at  rates  for  received  and  receivable  on  all  other  marine  risks,  and 

life  risks  based  upon  the  rate  of  mortnlitv  as  estab-  at  rates  for  life  risks,  based  upon  the  rate  of  mortality 

lished  by  the  American  Experience  Life  Tiibh.  and  the  established  by  the  Ajuerican  Experience  Life  Table, 

rate  of  interest  assumed  to  be  four  and  one  half  per  and  interest  at  fcmr  and  one  half  per  cent,  per  annum, 

cent.  i)er  annum,  and   such  rates  for  accidental  and  and  such  rates  for  accident  and  other  kinds  of  insur- 

other  kinds  of  insurance  as  are  Kenorally  accepted  by  ance,  as  are  accepted  by  the  insurance  authorities  of 

the  superintendent  of  the  insurance  depiirtment  of  the  the  State  of  New  York,  would  so  far  impair  his  capital 

State  of  New  York,  would  impair  his  capital  stock  al-  stock  paid  in  as  to  reduce  the  same  below  two  hundred 

ready  paid  in  to  an  extent  exceeding  twenty  per  cent.,  thousand  dollars  in  gold  coin  of  the  T'nited  States,  or 

such  person  is  insolvent.  below  twenty  per  cent,  of  said  capital  stock  paid  in. 

The  section  was  amended  by  another  act  of  March  such  person  is  insolvent.     And  in  the  case  of  a  person 

30,  1874  (Amendments  l!S7;3-4,  9)   so  as  to  read  as  fol-  thus  engaged  in  the  insurauce  business  in  this  state 

lows;  but  by  operation  of  section  117  of  the  last-named  on  the  ujutual  plan,  if  his  available  cash  assets  shall 

amendatory  act  of  JIarch  30,  1S74    (see  Amendments  not  exceed  his  liabilities,  as  hereinbefore  enumerated, 

l«7;;-4,r,0;  post.  44.-)7)  the  amendment  given  in  the  text  in  the  full  sum  of  two  hundred  thousand  dollars  in 

sui)t.iN,aed  botli  the  original  section  and  the  following  United  States  gold  coin,  such  person  is  insolvent. 
amendment  of  March  30,  Wti. 

143 


605-638  POLITICAL  CODE. 

605.  Fees  to  be  paid  to  commissioyiei-. 

Sec.  G05.  The  commissioner  must  require  in  advance,  in  United  States  gold 
coin,  the  following  fees: 

1.  For  filing  the  articles  of  incoii^^oration  or  certified  copy  of  ai'ticles  or  other 
certificate  required  to  be  filed  in  his  ofiice,  thirty  dollars; 

2.  For  filing  the  annual  statement  reqitired  to  be  filed,  twenty  dollars; 

3.  For  filing  any  other  pajDcrs  i*equired  by  this  chapter  to  be  filed,  five  dollars; 

4.  For  furnishing  copies  of  papers  filed  in  his  ofiice,  twenty  cents  per  folio; 

5.  For  certifying  coj^ies,  one  dollar  each; 

6.  For  each  certificate  issued  as  provided  in  section  C19,  the  sum  of  five  dollars. 

606.  Assessments  for  deficiency  in  scdary  and  expenses. 

Sec  606.  If  the  salary  of  the  commissioner  and  the  expenses  of  his  ofifice 
exceed  the  fees  and  charges  collected  by  him,  such  excess  must  be  annually 
assessed  by  the  commissioner  upon  all  persons  or  corjDorations  engaged  in  the 
business  of  insurance  in  this  state,  and  they  are  severally  liable  therefor,  pro 
rata,  according  to  the  amount  of  premiums  received  or  receivable  from  risks 
taken  in  this  state,  respectively,  during  the  year  ending  on  the  thirty-first  day 
of  December  next  preceding  the  assessment.  The  commissioner  must  collect 
all  fees  and  assessments,  and  pay  monthly  into  the  state  treasury  whatever 
amounts  may  be  received  and  collected  by  him.  He  may  bring  actions  in  the 
name  of  the  j)eople  of  this  state  to  enforce  such  collection;  and  any  person  liable 
for  any  assessment  who  neglects  or  refuses  to  pay  the  amount  of  such  assessment 
within  ten  days  after  demand  thereof  in  writing  by  the  insurance  commissioner, 
becomes  liable  to  pay  double  the  amount  of  such  assessment,  and  any  judgment 
recovered  in  such  case  must  be  for  such  double  amount  and  costs. 

607.  Ceriain  certificates  to  be  filed  in  his  ofiice. 

Sec.  607.  The  commissioner  miist  cause  everj'  corporation  or  persoij,  before 
engaging  in  the  business  of  insurance,  to  file  in  his  office  as  follows: 

1.  If  incorj^orated  under  the  laws  of  this  state,  a  coj^y  of  the  articles  of  incor- 
poration or  statement  of  any  increase  or  diminution  of  the  capital  stock,  certified 
by  the  secretary  of  state  to  be  a  copy  of  that  which  is  filed  in  his  office; 

2.  If  incoi^jiorated  under  the  laws  of  any  other  state  or  country,  a  copy  of  the 
articles  of  incorporation,  if  organized  or  formed  under  any  law  requiring  articles 
to  be  filed,  duly  certified  by  the  officer  having  the  custod}'  of  such  articles;  or, 
if  not  so  organized,  a  copy  of  the  law,  charter,  or  deed  of  settlement  under 
which  the  organization  is  made,  duly  certified  by  the  proper  custodian  thereof, 
or  i^roved  by  affidavit  to  be  a  cojDy;  also,  a  certificate,  under  the  hand  and  seal 
of  the  proper  officer  of  such  state  or  country  having  supervision  of  insurance 
business  therein,  that  such  corporation  or  company  is  organized  under  the  laws 
of  such  state  or  country,  with  the  amount  of  cai:)ital  stock  or  assets  required  by 
this  chapter; 

3.  If  not  incorporated,  a  certificate  setting  forth  the  nature  a«d  character  of 
the  business,  the  location  of  the  principal  office,  the  names  of  the  persons  and 
of  those  composing  the  association,  the  amount  of  actual  capital  employed  or  to 
be  employed  tlierein,  and  the  names  of  all  officers  and  persons  by  whom  the 
liusiness  is  or  may  be  managed.  The  certificate  must  be  verified  by  the  affidavit 
of  the  chief  officer,  secretaiy,  agent,  or  manager  of  the  association;  and  if  there 
is  any  written  articles  of  agreement  or  association,  a  copy  thereof  must  accom- 
pan}^  such  certificates. 

608.  Companies  doing  business  by  agents. 

Sec.  608.  He  must  require  from  ever^-^  insurance  association  not  formed  under 
the  laws  of  this  state,  or  not  incorporated,  carrying  on  the  business  of  insurance 
by  an  agent: 

144 


PUBLIC  OFFICERS.  608-611 

1.  A  certified  or  verified  power  of  attorney  or  written  authority  to  siicli  agent; 

2.  A  notice  of  any  change  of  agents,  or  in  the  powers  of  any  agent,  within 
ninety  days  after  such  change,  and  a  certified  copy  of  any  new  or  further  power 
of  attorney  or  authority  before  the  same  is  acted  under; 

3.  When  by  any  law,  agreement,  or  other  writing,  any  change  is  made  in 
respect  to  any  of  the  particular^  set  forth  in  the  certificate  on  file,  a  certified 
copy  of  such  law,  agreement,  or  other  writing,  verified  respectively  as  certifi- 
cates are  required  to  be  verified;  also,  a  notice  of  such  change  before  the  same 
is  acted  under. 

609.  3Iay  determine  name  of  new  coyporalion. 

Sec.  609.  The  commissioner  must  require  the  name  under  which  any  corpora- 
tion hereafter  proposes  to  be  formed  or  organized  under  the  laws  of  this  state  for 
the  transaction  of  insurance  business,  to  be  submitted  to  him  before  the  commence- 
ment of  such  business;  and  he  may  reject  any  name  or  title  so  submitted  when 
the  same  is  an  interference  with  or  too  similar  to  one  already  approj^riated,  or 
likely  to  mislead  the  public  in  any  respect;  and  in  such  case  a  name  not  liable 
to  such  objection  must  be  chosen. 

610.  Statement  to  he  made  by  insurance  companies. 

Sec  610.  The  commissioner  must  require  from  every  corporation  or  person 
doing  business  of  insurance  in  this  state,  a  statement,  verified  as  follows: 

1.  If  it  be  made  by  a  corporation  organized  under  the  laws  of  this  state,  by 
the  oaths  of  the  president  and  secretary,  or  of  the  vice-president  and  secretary 
thereof; 

2.  If  made  by  a  foreign  insurance  company  or  person,  by  the  oath  of  the 
principal  executive  officer  thei'eof ; 

3.  If  it  be  made  hy  an  individual  or  firm,  by  the  oath  of  such  individual  or  a 
member  of  the  firm.  [Amendment,  approved  March  30,  1874;  Amendments 
1873-4,  10;  took  effect  July  6,  1874.'^> 

611.  Statement,  when  to  he  made. 

Sec.  611.  The  statement  mentioned  in  the  pi^eceding  section  must  exhibit  the 
condition  and  affairs  of  every  such  corporation,  person,  firm,  or  individual,  on 
the  thirty-first  day  of  December  then  next  preceding,  and  must  be  jiublished 
in  a  daily  newspaper  in  the  city  where  the  principal  office  is  located  for  the 
peiiod  of  one  week;  and  must  be  filed  with  the  insurance  commissioner,  as 
follows: 

1.  If  made  by  a  person  residing  in,  or  by  a  company  organized  under  the 
laws  of  this  state,  on  or  before  the  first  day  of  February  of  each  year; 

2.  If  made  by  a  jDerson  resident  of,  or  by  a  company  organized  under  the 
laws  of  any  other  state  or  temtory  or  district  of  the  United  States,  on  or  be- 
fore the  first  day  of  March  of  each  year. 

3.  If  made  by  a  person  resident  of,  or  by  a  company  organized  under  the 
laws  of  any  coujitry  foreign  to  the  United  States,  on  or  before  the  first  day  of 
April  of  each  year.  [Amendment,  approved  March  30,  1874;  Amendments  1873-4, 
10;  took  effect  July  6,  1874.'-^' 

(a)  The  original  section  had  the  following  fiirther  1.  By  persons  transacting  the  business  of  fire,  ma- 
clause  at  the  end  of  the  second  subdivision,  '•  or  by  the  rlne,  or  inland  insurance: 

oath  of  a  duly  authorized  agent  thereof  residing  in  this  (a)  If  made  by  a  person  residing  in  or  by  a  company 

state."  organized  imder  the  laws  of  this  state,  on  or  before 

(a)   Original  section:  the  first  day  of  February  of  each  year; 

Sec.  Gil.  The  statement  mentioned  in  the  preceding  (b)   If  made  by  a  person  resident  of  or  by  a  company 

section  must  exhibit  the  condition  and  affairs  of  every  organized  under  the  laws  of  any  other  state  or  territory 

such  corporation,  person,  firm  or  individual,  on  the  or  district  of  the  United  States,  on  or  before  the  first 

thirty-first  day  of  December  then  next  jireceding,  and  day  of  June  of  each  year; 

must  be  published  in  a  daily  newspaper  in  the  city  (c)  If  made  by  a  person  resident  of  or  by  a  company 

where  the  principal  office  is  located,  for  the  period  of  organized  under  the  laws  of  any  country  foreign  to  the 
one  week ;  and  must  be  filed  with  the  insurance  com- 
missioner, as  follows: 

10  145 


612  POLITICAL  CODE. 

612.  Statement  hy  fire,  marine,  and  inland  infturance  companies. 

Sec.  612.  Such  statemeut,  if  made  by  jSre,  iiiariue,  and  inland  insurance 
companies,  must  show: 

Fird.  The  amount  of  the  capital  stock  of  the  company. 

Second.  The  property  or  assets  held  by  the  company,  specifying: 

1.  The  value  of  the  real  estate  held  by  such  company; 

2.  The  amount  of  cash  on  hand  and  deposited  in  banks  to  the  credit  of  the 
company,  specifying  the  same; 

3.  The  amount  of  cash  in  the  hands  of  agents  and  in  course  of  transmission; 

4.  The  amount  of  loans  secured  by  bonds  and  mortgages  constituting  the 
first  loan  on  real  estate  on  which  there  is  less  than  one  3'ear's  interest  due  or 
owing; 

5.  The  amount  of  loans  on  which  interest  has  not  been  paid  Avithin  one  year 
previous  to  statement; 

6.  The  amount  due  the  company  on  which  judgments  have  been  obtained; 

7.  The  amount  of  stocks  of  this  state,  of  the  United  States,  of  any  incorpo- 
rated city  of  this  state,  and  of  any  other  stocks  owned  by  the  company,  speci- 
fying the  amount,  nu)uber  of  shares,  and  par  and  market  value  of  each  kind  of 
stock; 

8.  The  amount  of  stocks  held  as  collateral  security  for  loans,  witb  the  amount 
loaned  on  each  kind  of  stock,  its  jDar  value  and  market  value; 

9.  The  amount  of  interest  due  and  unpaid; 

10.  The  amount  of  all  other  loans  made  by  the  comjDany,  specifying  the  same; 

11.  The  amount  of  premium  notes  on  hand  on  which  policies  are  issued; 

12.  All  other  property  belonging  to  the  company,  specifying  the  same. 
Third.  The  liabilities  of  such  company,  specifying: 

1.  The  amount  of  losses  due  and  unpaid; 

2.  The  amount  of  claims  for  losses  resisted  by  the  company; 

3.  The  amount  of  losses  in  process  of  adjustment  or  in  suspense,  including 
all  reported  or  supposed  losses; 

4.  The  amount  of  dividends  declared,  due,  and  remaining  unpaid; 

5.  The  amount  of  dividends  declared,  but  not  due; 

6.  The  amount  of  money  borrowed  and  security  given  for  the  payment 
thereof; 

7.  Gross  premiums  (without  any  deduction)  received  and  receivable  upon  all 
unexpired  fire  risks  running  one  year  or  less  from  date  of  jjolicy — reinsurance 
thereon  at  fifty  per  cent. ; 

8.  Gross  premiums  (without  any  deductions)  received  and  receivable  uj^on  all 
unexpired  fire  risks  ninning  more  than  one  year  from  date  of  policy— rein- 
surance thereon  pro  rata; 

9.  Gross  premiums  (without  any  deductions)  received  and  receivable  upon  all 
unexpired  marine  and  inland  navigation  risks,  except  time  risks — reinsurance 
thereon  at  one  hundred  j^er  cent. ; 

10.  Gross  i)remiums  (without  any  deductions)  received  and  receivable  on 
marine  time  risks — reinsurance  thereon  at  fifty  per  cent. ; 

11.  Amount  reclaimable  by  the  insured  on  perpetual  fire  insurance  policies, 
being  ninety-five  per  cent,  of  the  premium  or  dej^osit  received; 

12.  Eeinsurance  fund  and  all  other  liabilities,  except  caj^ital,  under  the  life 
insurance  or  any  other  special  department; 

United  States,  on  or  before  the  first  duy  of  .June  of  organized  under  the  laws  of  any  other  state  or  terri- 

each  year.  tory  or  diBtrict  of  the  TJnited  States,  on  or  before  the 

2.  By  iiersons  tninsacting  the  ImsinesB  of  insurance,  first  day  of  April  of  each  year; 

other  than  fire,  nmrine.  or  iulnnd:  (c)  If  iiiaiU-  by  a  xxrson  resident  of  or  by  a  company 

(a)   If  made  by  a  person  residing  in  or  by  a  comiJany  organized  under  the  laws  of  any  country  foreign  to  the 

organized  under  the  laws  of  this  state,  on  or  before  United  States,  on  or  before   the  first  day  of  June  of 

the  first  day  of  March  of  each  year;  each  year. 

()■!   If  made  by  a  person  resident  of  or  by  a  couiiJimy 

146 


PUBLIC  OFFICERS.  612-613 

13.  Unused  balances  of  bills  and  notes  taken  in  advance  for  premiums  on 
open  marine  and  inland  policies,  or  otherwise,  returnable  on  settlement; 

14.  Principal  unpaid  on  scrip  or  certificates  of  profits  which  liave  been  author- 
ized or  ordered  to  be  redeemed; 

15.  Amount  of  all  other  liabilities  of  the  company,  specifying  the  same. 
Fourth.  The  income  of  the  comj)any  during  the  preceding  year,  specifying: 

1.  The  amount  of  cash  premiums  received; 

2.  The  amount  of  notes  received  for  j)remiums; 

3.  The  amount  of  interest  money  received,  specifying  the  same; 

4.  The  amount  of  income  received  from  all  other  sources,  sjjecif^'ing  the 
same. 

Fifth.  The  expenditures  during  the  preceding  year,  specifying: 

1.  The  amount  of  losses  paid; 

2.  The  amount  of  dividends  paid; 

3.  The  amount  of  expenses  paid,  including  commissions  and  fees  to  agents 
and  officers  of  the  company; 

4.  The  amount  paid  for  taxes; 

5.  The  amount  of  all  other  payments  and  expenditures. 
Sixth.  1,  The  amount  of  risks  written  during  the  year; 

2.  The  amount  of  risks  exj^ired  during  the  year; 

3.  The  amount  of  risks  written  during  the  year  in  the  State  of  California; 
4    The  amount  of  premiums  thereon. 

613.  Statement  by  life,  health  and  accident  companies. 

Sec.  613.  Such  statement,  if  made  by  life,  health,  and  accident  companies, 
must  show: 

Fii^st.  The  amount  of  the  capital  stock  of  the  company. 

Second.  The  property  or  assets  held  by  the  company,  specifying: 

1.  The  value  of  the  real  estate  held  by  the  company; 

2.  The  amount  of  cash  on  hand  and  deposited  in  banks  to  the  credit  of  the 
company,  specifying  the  same; 

3.  The  amount  of  loans  secured  by  bond  and  mortgage  on  real  estate,  speci- 
fying the  same; 

4.  Amount  of  loans  secured  by  pledge  of  bonds,  stocks,  or  other  marketable 
securities  as  collateral,  sj)ecifying  the  same; 

5.  Cash  market  value  of  all  stocks  and  bonds  owned  by  the  company,  sj^eci- 
fying  the  same; 

6.  Interest  due  the  company  and  unpaid; 

7.  Interest  accrued  but  not  due; 

8.  Premium  notes  and  loans  in  any  form  taken  in  jDa^anent  of  premiums  on 
policies  now  in  foi'ce; 

9.  Gross  amount  of  premiums  in  process  of  collection  and  transmission  on 
policies  in  force; 

10.  Gross  amount  of  deferred  premiums; 

11.  All  other  assets,  specifying  the  same. 

TJiird — Liabilities.  1.  Claims  for  death  losses  and  matured  endowments,  due 
and  unpaid; 

2.  Claims  for  death  losses  and  matured  endowments  in  process  of  adjust- 
ment or  adjusted  and  not  due; 

3.  Claims  resisted  by  the  companj^; 

4.  Amounts  due  and  unpaid  on  annuity  claims; 

5.  Trust  fund,  on  deposit,  or  net  present  value  of  all  the  outstanding  jioli- 
cies,  computed  according  to  the  American  experience  tables  of  mortality,  with 
four  and  one  half  per  cent,  interest; 

147 


G13-G15  POLITICAL  CODE. 

6.  Additional  trust  fund  on  deposit,  or  net  present  value  of  extra  and  special 
risks,  including  those  on  impaired  lives; 

7.  Amount  of  all  unpaid  dividends  of  surplus  percentages,  bonuses,  and 
other  description  of  profits  to  policy-holders,  and  interest  thereon; 

8.  Amount  of  any  other  liability  to  policy-holders  or  annuitants  not  included 
above ; 

9.  Amount  of  dividends  unpaid  to  stockholders; 

10.  Amount  of  national,  state,  and  other  taxes  due; 

11.  All  other  liabilities,  specifying  the  same. 

Fourth — Income.  1.  Cash  received  for  premiums  on  new  policies  during  the 
year; 

2.  Cash  received  for  renewal  of  premiums  during  the  year; 

3.  Cash  received  for  purchase  of  annuities; 

4.  Cash  received  for  all  other  premiums; 

5.  Cash  received  for  interest  on  loans,  specifying  the  same; 

6.  Rents  received; 

7.  Cash  received  from  all  other  sources,  specifying  the  same; 

8.  Gross  amount  of  notes  taken  on  account  of  new  premiums; 

9.  Gross  amount  of  notes  taken  on  account  of  renewal  premiums. 
Fifth — Expenditures.  1.  Cash  paid  for  losses; 

2.  Cash  j)aid  to  annuitants; 

3.  Cash  paid  for  lapsed,  surrendered,  and  purchased  policies; 

4.  Cash  paid  for   dividends  to  policy-holders. 

5.  Cash  paid  for  dividends  to  stockholders; 

6.  Cash  paid  for  reinsurances; 

7.  Commission  paid  to  agents; 

8.  Salaries  and  other  compensation  of  officers  and  employees,  excejDt  agents 
and  medical  examiners; 

9.  Medical  examiners'  fees  and  salaries; 

10.  Cash  paid  for  taxes; 

11.  Cash  paid  for  rents; 

12.  Cash  paid  for  commuting  commissions; 

13.  All  other  cash  payments. 

Sixth.  Balance  sheet  of  jDremium  note  account. 

Seventh.  Balance  sheet  of  all  the  business  of  the  company. 

Eighth.  1.  Total  amount  of  insurance  effected  during  the  year  on  new  jDolicies; 

2.  Total  amount  of  insurance  effected  during  the  year  in  the  State  of  Cali- 
fornia; 

3.  Premiums  received  during  the  year  on  risks  written  in  the  State  of  Cali- 
fornia. 

614.  Stock  notes,  hoxo  computed. 

Sec.  G14.  Mutual  companies  formed,  existing,  and  doing  business  under  an 
act  entitled  "An  Act  to  provide  for  the  incorporation  of  mutual  insurance  com- 
panies," passed  April  twenty-sixth,  eighteen  hundred  and  fifty-one,  may  report 
their  aj^proved  stock  notes  as  capital  j^aid  up,  and  such  notes  for  all  purposes 
must  be  deemed  part  of  the  paid-uj)  capital  stock  of  such  corporation. 

615.  To  furnish  blanks. 

Sec.  015.  The  insurance  commissioner  must  cause  to  be  prepared  and  furnish 
to  each  person  and  to  each  of  the  companies  incorporated  in  this  state,  and  to  the 
attorney  of  each  of  the  companies  incor])orated  or  chartered  by  other  states  and 
foreign  governments,  priuted  forms  oi  the  statements  herein  required;  and  he  may 
make  such  changes  from  time  to  time  in  the  form  of  the  same  as  seems  to  him 
best  adapted  to  elicit  from  the  companies  a  true  exhibit  of  their  condition  in 

148 


PUBLIC  OFFICERS.  G15-G17 

respect  to  the  several  points  hereinbefore  enumerated.  The  same  forms  must 
be  addressed  to  all  jjersous  and  companies  engaged  in  the  same  kind  of  busi- 
ness. 

616.  Agent  upon  ichom  proccH^  may  he  served. 

Sec.  616.  The  insurance  commissioner  must  require,  as  a  condition  precedent 
to  the  transaction  of  insurance  business  in  this  state  by  any  foreign  corporation 
or  comj)any,  that  such  corporation  or  company  must  file  in  his  office  the  name 
of  an  agent,  and  his  jjlace  of  residence  in  this  state,  on  whom  summons  and 
other  process  may  be  served  in  all  actions  or  other  legal  proceedings  against 
such  corporation  or  company.  All  process  so  served  gives  jurisdiction  over  the 
person  of  such  corporation  or  company.  The  agent  so  appointed  and  desig- 
nated shall  be  deemed  in  law  a  general  agent,  and  must  be  the  principal  agent 
or  chief  manager  of  the  business  of  such  corporation  or  company'  in  this  state. 
Any  act,  statement,  representation,  or  agreement,  done  or  made  by  an  agent  so 
aj^pointed  and  designated,  which  in  any  manner  j)ertains  to  the  business  of  such 
corporation  or  company,  shall  be  deemed  the  act,  statement,  representation,  or 
agreement  of  the  principal,  and  shall  have  the  same  force  and  efifect  as  if  done 
or  made  hj  the  principal.  Any  such  foreign  corporation  or  comjaany  shall,  as 
a  fui*ther  condition  precedent  to  the  transaction  of  insurance  business  in  this 
state,  and  in  consideration  of  the  privilege  to  transact  such  insurance  business 
in  this  state,  make  and  file  with  the  insurance  commissioner  an  agreement  or 
stipulation,  executed  by  the  proper  authorities  of  such  corporation  or  company, 
in  form  and  substance  as  follows:  "The  (giving  name  of  corporation  or  com- 
pany), does  hereby  stipulate  and  agree,  that  in  consideration  of  the  permission 
granted  by  the  State  of  California  to  it,  to  transact  insurance  business  in  that 
state,  that  in  all  litigation  between  (giving  name  of  cori^oration  or  compan}^), 
and  any  citizen  of  the  State  of  California,  the  courts  of  said  state  shall  have 
and  maintain  exclusive  jurisdiction  of  such,  litigation.  And  it  is  further  agreed 
that  no  action  hereafter  commenced  in  any  district  court  of  said  State  of  Cali- 
fornia against  (insert  name),  shall  be  removed  or  transferred  therefrom  to  the 
United  States  circuit  court."  If  in  any  action  hereafter  commenced  in  any  dis- 
trict court  of  this  state,  by  a  citizen  thereof,  against  a  foreign  corporation  or 
company  doing  insurance  business  in  said  state,  such  corporation  or  company 
shall  transfer,  or  cause  to  be  transferred,  such  action  to  the  United  States  cir- 
cuit court,  the  right  of  such  corporation  or  company  to  transact  insurance  busi- 
ness in  said  state  shall  thereupon  and  thereby  cease  and  determine;  and  the 
insurance  commissioner  shall  immediately  revoke  the  certificate  of  such  cor- 
poration or  company,  authorizing  it  to  do  business  in  said  State  of  California. 
[Amendment,  approved  March  28,  1874;  Amendments  1873-4,  63;  took  effect  from 
passage;  repealed  inconsistent  acts}^^ 

617.  Duties  of  commissioner  ivhen  companies  fail  to  make  statement. 

Sec.  617.  The  commissioner  must  collect  the  sum  of  one  thousand  dollars 
from  any  corporation  or  company  engaged  in  the  business  of  insurance,  for  a 
failure  to  make  and  deposit,  in  his  office,  within  ninet}^  days  after  being  thereto 
requested  by  said  commissioner,  the  statements  and  stipulations  provided  for 
in  the  eighth  preceding  section  and  the  last  preceding  section;  and  an  addi- 
tional penalty  of  two  thousand  dollars  for  each  and  eveiy  month  thereafter  that 
such  corporation  or  comj^any  contiiuies  to  transact  the  business  of  insurance, 
until  such  certificate,  statement,  and  stipulations  are  filed;  and  for  that  purpose 
suit  may  be  instituted  in  the  name  of  the  people  of  the  State  of  California,  in 
any  court  of  competent  jurisdiction.     The  insurance   commissioner  shall  im- 

(a)  The  original  section  consisted  only  of  the  first  two  sentences  of  the  above  amended  section,  omitting  the 
words  "  or  company." 

149 


G17-G21  POLITICAL  CODE, 

mediately  after  the  passage  of  this  act  give  due  notice  of  its  provisions  to  all 
foreign  insurance  cori:)orations  or  conijianies  doing  or  proposing  to  do  business 
in  this  state.  [Amendmenf ,  approved  3larch  28,  1874;  Amendments  1873-4,  65; 
iook  effect  from  passage ;  repealed  inconsistent  acts}^'' 

618.  Deposits  and  dividends. 

Sec.  G18.  Whenever  the  laws  of  any  state  of  the  United  States  require  any 
life  insurance  company  incorporated  by  or  organized  under  the  laws  of  this 
state  to  deposit  with  some  officer  of  this  state  securities  in  trust  for  or  for  the 
benefit  of  the  policy-holders  of  such  corjioration  as  a  prerequisite  to  transacting 
business  in  such  other  state,  the  commissioner  of  this  state  must  receive  from 
such  life  insurance  corporation  securities  of  the  amount  rec[uired  b}^  the  laws  of 
such  other  state,  on  deposit  and  in  trust  for  the  policy-holders  of  such  corpora- 
tion, the  value  of  which  must  be  ec|ual  to  the  vakie  of  interest-bearing  stocks, 
bonds,  or  other  securities  of  the  United  States.  He  must,  upon  the  receipt  of 
the  securities,  forthwith  make  a  special  deposit  in  the  state  treasury  of  the  same, 
in  packages  marked  with  the  name  of  the  corporation  from  whom  received, 
where  they  must  remain  as  security  for  policy-holders  in  the  corporation  to 
which  they  respectively  belong;  but  so  long  as  an}'  corporation  so  depositing 
continues  solvent,  he  must  permit  such  corporation  to  collect  the  interest  or 
dividends  on  its  securities  so  deposited,  and  from  time  to  time  to  withdraw  any 
such  securities  on  depositing  other  securities  in  the  stead  of  those  to  be  with- 
drawn, such  new  securities  to  be  of  the  same  value  mentioned  in  this  chapter; 
but  such  securities  must  not  be  withdrawn  from  the  state  treasury  unless  upon 
the  written  order  of  the  acting  president  and  secretary  of  the  corporation  mak- 
ing the  deposits,  which  order  must  be  indorsed  by  the  commissioner,  or  uj^on 
the  order  and  authority  of  some  court  of  competent  jurisdiction. 

619.  Deposits,  receipts  for. 

Sec.  G19.  Whenever  an}'  life  insurance  corporation,  organized  under  the  laws 
of  this  state,  has  deposited  with  the  commissioner  the  requisite  securities,  in 
conformity  with  the  laws  of  the  state  in  which  such  corporation  is  desirous  of 
transacting  its  business,  he  must  issue  to  such  corporation  a  certificate,  under 
his  official  seal,  of  such  deposit,  for  each  state  requiring  the  same,  which  must 
state  the  items  and  amount  of  securities  thus  deposited,  and  that  they  are  of 
the  market  value  represented  therein;  but  no  securities  must  be  estimated  above 
the  par  value  of  the  same. 

620.  Deposits  returned,  lohen. 

Sec.  G20.  Whenever  any  life  insurance  corporation  has  so  deposited  its  secur- 
ities, and  has  paid,  canceled,  or  reinsured  all  its  unexpired  policies,  and  all  its 
liabilities  under  such  policies  are  extinguished  or  assumed  by  other  responsible 
coiporations  having  a  siujilar  deposit  with  the  commissioner,  then  if,  on  ap- 
plication of  such  corporation,  verified  by  the  oath  of  its  president  and  secretaiy, 
and  from  an  examination  of  the  books  of  the  corporation  and  of  its  officers 
under  oath,  the  insurance  commissioner  is  satisfied  that  all  of  its  policies  are  so 
paid,  canceled,  extinguished,  or  reinsured,  he  must  deliver  up  to  the  corjiora- 
tion  the  securities  deposited. 

621.  Examination  (f  securities. 

Sec  G21.  The  commissioner  must  make  an  annual  examination  of  the  securi- 
ties received  by  him  from  each  life  insurance  corporation,  and  if  it  appear  at 

(a)  Original  Bection:  niontli  thorcaitcr  tliiit  such  person  or  corjioratiou  con- 

Skc.  017.  The  coniiniSRloner  must  collci-t  tlic  sum  of  tinucs  to  transact  the  l)usiu(ss  of  insurance  until  such 

five  huudrcd  dollars  from  any  person  or  corporation  certificate  and  statement  is  filed,  and  for  that  purpose 

engaged  in  tin;  Inisiness  of  insurance  for  a  failure  to  suits  may  be  instituted  in  the  name  of  the  peoi)le  of 

luake  and  deposit  in  his  office  the  statements  provided  the  State  of  California  iu  any  court  of  comi)etent  juris- 

for  in  the  eighth  preceding  section,  and  an  additional  diction, 
penalty  of  one  tliousaud  dollars  for  each  and  every 

150 


PUBLIC  OFFICERS.  621-G23 

any  time  that  the  securities  deposited  by  auy  corporation  amount  to  less  than 
the  sum  required  for  the  purposes  for  which  the  deposit  Avas  made,  he  must 
notify  tlie  corporation  thereof;  and  unless  the  deficiency  is  made  up  within 
thirt}'  days  after  notice,  the  commissioner  must  countermand  all  the  certificates 
he  may  have  issued  to  the  corporation  under  this  chapter,  and  give  notice 
thereof  to  the  officers  of  the  several  states  to  whom  the  certificate  may  have 
been  transmitted;  and  he  must  also  publish  the  notice  for  three  weeks  succes- 
sively in  one  daily  newspaper  printed  in  the  city  of  Sacramento,  and  one  daily 
newspaper  printed  in  the  city  of  San  Francisco,  at  the  expense  of  the  corpora- 
tion, collected  by  assessment. 

622.  Retaliatory  clause. 

Sec.  622.  Whenever  the  laws  of  any  state  or  count[r]y  require  of  insurance 
companies,  incorporated  under  the  laws  of  this  state,  and  having  agencies  in 
sucli  other  state  or  couut[r]y,  or  of  the  agents  thereof,  any  further  or  greater 
license,  fees,  charges,  impositions,  taxes,  deposit  of  securities,  statements,  pub- 
lications, or  certificates  of  authority,  or  inflict  any  greater  iines  or  penalties 
upon  such  corj^orations  or  agents  than  are  required  from  similar  companies  or 
agents,  belonging  to  such  state  or  count[r]y  respectively,  then  and  in  every  such 
case,  from  every  company,  person,  or  corporation  of  such  state  or  eount[r]y, 
which  has  or  is  about  to  establish  agencies  in  this  state,  the  commissioner  must, 
before  it  continues  or  commences  to  do  business  in  this  state,  collect  the  same 
license,  fees,  charges,  impositions,  and  taxes,  "  as  are  imposed  by  such  state 
upon  agents,  companies,  corporations,  or  persons  of  this  state,  doing  business 
in  such  state  in  excess  of  the  license,  fees,  charges,  imiDOsitions,  and  taxes,  upon 
agents,  companies,  corporations,  or  persons  of  that  state,"  and  require  the 
same  statements,  publications,  certificates  of  authority,  and  the  same  deposit  of 
securities  as  are  required  by  the  laws  of  such  state  or  country,  of  companies, 
persons,  or  corporations,  and  agents  of  this  state,  doing  business  in  such  other 
state  or  country.  And  the  same  fines  and  penalties  must  be  inflicted  upon 
companies,  persons  or  corporations,  of  such  other  state  or  country,  and  their 
agents,  as  are  inflicted  by  the  laws  of  such  state  or  country  upon  companies, 
persons,  or  corporations  of  this  state,  and  their  agents,  in  excess  of  such  fines 
and  penalties  inflicted  upon  companies,  persons,  or  corporations  belonging  to 
such  state  or  country,  resj)ectively;  which  may  be  recovered  by  the  insurance 
commissioner  in  the  manner  provided  in  section  598  of  this  code.  [Amend- 
ment, apj^roved  March  30,  1874;  Amendments  1873-4,  11;  took  efect  July  G, 
1874.'^' 

623.  Bonds  from  foreign  corporations. 

Sec.  623.  The  commissioner  must  require  every  company,  association  or  indi- 
vidual, not  incorporated  under  the  laws  of  this  state,  and  projjosing  to  transact 
insurance  business  by  agent  or  agents  in  this  state,  before  commencing  such 
business  to  file  iu  his  office  a  bond,  to  be  signed  by  the  person  or  firm,  officer  or 
agent,  as  princij^al,  with  two  sureties,  to  be  approved  by  the  commissioner,  in 
the  j)enal  sum  of  two  thousand  dollars  for  each  insurance  company,  association, 

(a)  Original  section:  agencies  in  this  state,  the  commissioner  must,  before 
Sec.  622.  Whenever  the  laws  of  any  state  of  the  it  continues  or  commences  to  do  busincsK  in  this  state. 
United  States  require  of  insurance  companies  incor-  collect  the  same  license,  fees,  charges,  impot-iticius,  and 
porated  under  the  laws  of  this  state  and  having  agen-  taxes,  and  require  the  same  statements,  publiciitions, 
cies  in  such  other  state,  or  of  the  agents  thereof,  any  certificates  of  authority,  and  the  same  depo.sit  of  secu- 
turther  or  greater  license,  fees,  charges,  impositions,  rities  as  are  required  by  the  laws  of  such  state  of  simi- 
taxes,  deposit  of  securities,  statements,  publications,  lar  companies,  persons,  or  corporations,  and  agents  of 
or  certificates  of  authority,  or  inflict  any  greater  fines  this  state  doing  business  iu  such  other  state;  and  the 
or  penalties  upon  such  corporations  or  agents  than  are  same  fines  and  penalties  must  be  inflicted  upon  corn- 
required  from  similar  companies  or  agents  of  other  panies,  persons,  or  corporations  of  such  other  states, 
states  doing  business  in  this  state,  then  and  in  eveiy  and  their  agents,  as  are  inflicted  by  such  states  upon 
such  case,  from  every  company,  person,  or  corporation  companies,  persons,  or  corporations  of  this  state,  and 
of  such  other  state  which  has  or  is  about  to  establish  their  agents,  under  the  laws  of  such  other  states. 

151 


G23-630  POLITICAL  CODE. 

firm  or  individual  for  whose  account  it  is  proj^osed  to  collect  premiums  of  insur- 
ance in  this  state,  the  conditions  of  such  bonds  to  be  as  follows: 

1.  That  the  person  or  firm,  agent  or  officer  named  therein,  acting  on  behalf 
of  the  company,  association,  firm  or  individual  named  therein,  will  pay  to  the 
treasurer  of  the  county,  or  city  and  county,  in  which  the  principal  office  of  the 
agency  is  located,  such  sum  per  quarter,  c^uarterly  in  advance,  for  a  license  to 
transact  an  insurance  business,  or  such  other  license  as  may  be  imposed  by  law, 
so  long  as  the  agency  remains  in  the  hands  of  the  person  or  firm,  officer  or 
agent  named  as  principal  in  the  bond; 

2.  That  the  2:)erson  or  firm,  officer  or  agent  will  pay  to  the  state  all  stamp  or 
other  duties  on  the  gross  amounts  insured  by  them  in  the  manner  and  at  the  time 
prescribed  by  law,  inclusive  of  renewals  on  existing  policies; 

3.  That  the  joersou,  firm,  agent  or  cori^oration  named  therein  will  conform 
to  all  the  provisions  of  the  revenue  and  other  laws  made  to  govern  them. 

624.  Separate  bonds,  when. 

Sec.  624.  Whenever  the  same  person,  firm,  ofiicer  or  agent  desires  to  collect 
premiums  of  insurance  for  more  than  one  company,  association  or  individual, 
not  incorporated  under  the  laws  of  this  state,  the  commissioner  must  require  a 
separate  bond,  as  provided  in  the  preceding  section,  for  each  company  or  asso- 
ciation so  represented  by  such  person,  firm,  officer  or  agent. 

625.  Commissioner  to  furnish  assessor  with  certain  information. 

Sec  625.  The  commissioner  must,  before  the  commencement  of  each  fiscal 
year  as  fixed  in  the  revenue  laws,  furnish  the  assessor  of  the  county  in  which  the 
principal  office  of  any  person  or  corporation  doing  the  business  of  insurance  is 
situated,  all  the  data  concerning  premiums  collected  by,  and  all  other  necessary 
information  in  relation  to  the  business  of  such  person  or  corporation  as  will 
assist  the  assessor  in  the  performance  of  his  duties. 

626.  Securities. 

Sec.  626.  The  commissioner  must  require  from  every  person,  before  and  after 
engaging  in  the  business  of  insurance,  a  full  comi:>liance  with  all  the  provisions 
of  Title  II,  Part  IV,  Division  I  of  the  Civil  Code  applicable  thereto;  and  every 
person  neglecting  to  comply  with  such  requirements  is  subject  to  the  fines  and 
penalties  therein  prescribed.     [See  post,  5414.] 

627.  Statements  to  be  based  on  gold  coin  values. 

Sec.  627.  All  statements,  estimates,  percentages,  payments,  and  calculations 
required  by  this  chapter  to  be  made,  either  by  the  commissioner  or  persons  en- 
gaged in  the  business  of  fire  or  marine  insurance,  must  be  in  gold  coin  of  the 
United  States. 

628.  Salary. 

Sec  628.  The  annual  salary  of  the  insurance  commissioner  is  three  thousand 
dollars. 

629.  Salary  of  dqmiy. 

Sec  629.  The  annual  salary  of  the  deputy  of  the  commissioner  of  insurance 
is  eighteen  hundred  dollars. 

630.  Contingent  expenses. 

Sec  630.  The  commissioner  may  procure  rooms  for  his  office,  at  a  rent  not 
to  exceed  seventy-five  dollars  per  month,  and  may  provide  a  suitable  safe  and 
furniture  therefor;  he  may  also  provide  stationery,  fuel,  printing,  and  other 
conveniences  necessaiy  for  the  transaction  of  the  business  of  his  office.  All 
expenditures  authorized  in  this  section  must  be  audited  by  the  board  of  exam- 
iners and  paid  in  the  same  manner  as  the  salary ^of  the  commissioner. 

152 


PUBLIC  OFFICEKS.  631-643 

631.  Location  of  office. 

Sec.  G31.  The  commissioner  must  keep  his  office  in  the  city  of  San  Fran- 
cisco. 

632.  Official  bond. 

Sec.  C32.  The  commissioner  must  execute  an  official  bond  in  the  sum  of  ten 
thousand  dollars. 

633.  Conditions  precedent  to  rigid  to  act  as  agent  or  solicitor. 

Sec.  633.  No  jierson  shall,  in  this  state,  act  as  the  agent  or  solicitor  of  any 
life  insurance  company  doing  business  in  this  state,  until  he  has  produced  to 
the  commissioner  and  filed  with  him,  a  duplicate  power  of  attorney  from  the 
company,  or  its  authorized  agent,  authorizing  him  to  act  as  such  agent  or  solicitor. 
Upon  filing  such  power,  the  commissioner  shall  issue  a  license  to  him  to  act 
as  such  agent  or  solicitor  for  such  company,  if  such  company  has  received  a 
certificate  of  authority  from  such  commissioner  to  do  business  in  this  state; 
provided,  that  if  such  agent  or  solicitor  shall,  within  the  twelve  months  next 
preceding,  have  been  in  the  employ  of  any  other  company,  or  its  authorized 
agent,  as  such  agent  or  solicitor,  he  must  produce  to  the  commissioner  written 
evidence  from  such  employer  that  all  moneys  he  may  have  collected  for  such 
company  or  agent  have  been  paid  over  to  said  company  or  agent.  Such  license 
shall  continue  in  force  for  twelve  months  from  the  date  thereof,  but  may  be 
and  shall  be  sooner  revoked  upon  application  of  the  company  or  its  authorized 
agent.  Such  license  may  be  renewed  from  time  to  time,  for  an  additional 
period  of  twelve  months,  on  production  by  the  holder  to  the  commissioner  of  a 
certificate  from  the  company  that  such  person's  authority  as  such  agent  or  so- 
licitor continues.  For  each  such  license,  or  renewal  thereof,  the  commissioner 
shall  receive  the  sum  of  one  dollar.  The  commissioner  shall  keep  an  alpha- 
betical list  of  the  names  of  persons  to  whom  such  license  shall  be  issued,  with 
the  date  of  the  license  and  renewal,  and  the  name  of  the  company  for  which 
such  person  is  working.  If  any  person  shall  fraudulently  assume  to  be  an  au- 
thorized agent  or  solicitor  of  any  life  insurance  company,  and  thus  jorocui-e,  or 
attempt  to  procure,  a^jplications,  or  receive  or  attempt  to  obtain  money  for  pre- 
miums, he  shall  be  guilty  of  a  misdemeanor.  If  any  person  shall,  under  a  false 
or  fictitious  name,  procure,  or  attempt  to  procure,  a  license  to  act  as  agent  or 
solicitor  of  any  life  insui-ance  company,  he  shall  be  guilty  of  a  misdemeanor. 
[New  section,  approved  March  12,  1874;  Amendments  1873-4,  QQ;  took  effect  six- 
tieth day  after  passage. 

ARTICLE  XVIL 

FISH    COMMISSIONEKS. 

642.  General  duties  of. 

Sec  642.  It  is  the  duty  of  the  fish  commissioners: 

1.  To  establish  fish  breederies  for  stocking  the  waters  of  this  state  with 
foreign  and  native  fish; 

2.  To  purchase  and  import  the  spawn  or  ova  of  fish  suitable  for  food; 

3.  To  stock  with  such  spawn  the  waters  of  this  state; 

4.  To  employ  persons  skilled  in  fish  breeding  to  assist  them  in  their  duties; 

5.  To  furnish  jDlans  for  and  direct  and  compel  the  construction  and  repair  of 
fish  ladders  and  ways  upon  dams  and  obstructions; 

6.  To  report  biennially  to  the  governor  a  statement  of  all  their  transactions 
and  disbursements. 

643.  No  compensation. 

Sec.  643.  The  commissioners  receive  no  compensation. 

153 


654-663  POLITICAL  CODE. 

AETICLE  XVIII. 

BOARD    OF    EXAJVnNERS, 

654.  Chairman. 

Sec.  654.  The  governor,  and  in  his  absence  the  secretary  of  state,  is  chairman 
of  the  board  of  examiners. 

655.  Meetings. 

Sec.  655.  The  semi-monthly  meetings  of  the  board  must  be  hekl  at  the  state 
capitol  on  the  first  and  third  Mondays  in  each  month. 

656.  Record  claims  to  be  entered  on  viinufes. 

Sec.  656.  The  board  must  keep  a  record  of  all  their  proceedings,  and  any 
member  may  cause  his  dissent  to  the  action  of  the  majority  upon  any  matter  to 
be  entered  upon  such  record.  And  all  claims  must  be  entered  on  the  minutes 
of  the  board,  before  the  same  shall  be  acted  ujjon.  [Amendment,  ajyproved 
March  30,  1874;  Amendments  1873-4,  67;  took  effect  from  jxissage.^^'' 

657.  Rides  and  regulations.    , 

Sec.  657.  The  board  may,  in  writing,  establish  rules  and  regulations  not 
inconsistent  with  law  for  its  government. 

658.  Witnesses. 

Sec.  658.  The  chairman  may  issue  subj)oenas  and  compel  the  attendance  of 
witnesses  before  the  board  or  any  member  thereof  in  the  same  manner  that  any 
court  in  this  state  may;  and  whenever  the  testimony  of  any  witness  against  a 
demand  pending  before  them  is  material,  the  chairman  must  cause  the  attend- 
ance of  the  witness  before  the  board,  or  a  member  thereof,  to  testify  concerning 
the  demand,  and  the  board  may  make  a  reasonable  allowance  therefor,  not 
exceeding  the  fees  of  witnesses  in  civil  cases,  which  must  be  jjaid  out  of  the 
ajjpropriation  for  the  contingent  expenses  of  the  board,  but  in  no  instance  can 
an  allowance  be  made  in  favor  of  a  witness  who  appeared  in  behalf  of  the 
claimant. 

659.  Depositions. 

Sec.  659.  Each  member  of  the  board  may  take  depositions  to  be  used  before  it. 

660.  Presentation  of  and  action  on  claims  for  which  apiwo2:)riations  have  been  made. 
Sec.  660.  Any  person  having  a  claim  against  the  state  for  which  an  appro- 
priation has  been  made,  may  present  the  same  to  the  board  in  the  form  of  an 
account  or  j^etition,  and  the  clerk  of  the  board  must  date,  number,  and  file  such 
claim,  and  the  board  must  allow  or  reject  the  same  in  the  order  of  its  presen- 
tation. The  board  may  for  cause  postpone  action  ujion  a  claim  for  not  exceeding 
one  month. 

661.  Approval  of  claims. 

Sec.  661.  If  the  board  approve  such  claim  they  must  indorse  thereon,  over 

their  signatures,  "Ajyproved  for  the  sum  of dollars,"  and  transmit  the  same 

to  the  office  of  the  controller  of  state;  and  the  controller  must  draw  his  warrant 
for  the  amount  so  approved  in  favor  of  the  claimant  or  his  assigns  in  the  order 
in  which  the  same  was  ajyproved . 

662.  JJisapproval. 

Sec.  6(52.  If  the  board  disapprove  such  claim  they  must  cause  the  same  to  be 
filed  with  the  records  of  the  board  with  a  statement  showing  such  disapproval, 
and  the  reasons  therefor. 

663.  Same,  as  to  claims  provided  for,  but  for  which  there  is  no  appropriation. 
Sec.  663.  If  no  approi)riation  has  been  made  for  the  payment  of  an}'  claim 

presented  to  the  board,  the  settlement  of  which  is  provided  for  by  law,  or  if  an 

(a)  The  original  section  did  not  contain  the  last  sentence  of  the  above  amendment. 

154 


PUBLIC  OFFICEKS.  6G3-672 

approioriation  made  has  been  exhausted,  the  board  must  audit  the  same,  and  if 
they  approve  it,  must  transmit  it  to  the  legislature  with  a  statement  of  their 
api)roval. 

664.  Same,  as  to  unsettled  claims. 

Sec.  GG4.  Any  person  having  a  claim  against  the  state,  the  settlement  of 
which  is  not  otherwise  provided  for  by  law,  must  present  the  same  to  the  board 
of  examiners  at  least  four  months  before  the  meeting  of  the  legislature,  accom- 
panied by  a  statement  showing  the  facts  constituting  the  claim,  verified  in  the 
same  manner  as  complaints  in  civil  actions. 

665.  Time  of  meeting  for  action  on  claims  referred  to  in  last  section. 

Sec.  665.  On  the  first  Monday  of  September  preceding  the  meeting  of  each 
legislature,  the  board  must  hold  a  session  at  the  state  capitol  for  the  purpose 
of  examining  the  class  of  claims  referred  to  in  the  preceding  section,  and  may 
adjourn  from  time  to  time  until  their  work  is  completed.  Prior  thereto  they 
must  cause  a  list  and  brief  abstract  of  all  claims  filed  with  them  to  be  made  and 
published  in  some  newspaper  at  Sacramento  city  for  such  time  as  they  may 
prescribe.  The  list  must  be  accompanied  by  a  general  notice  of  the  order  in 
which  and  of  the  time  when  the  board  will  proceed  to  examine  the  claims. 

666.  Proof  and  examination  of  such  claims. 

Sec.  666.  The  board  must,  at  the  time  designated,  proceed  to  examine  and 
adjust  all  such  claims.  They  may  hear  evidence  in  support  of  or  against  them, 
and  report  to  the  legislature  such  facts  and  recommendations  concerning  them 
as  they  may  think  proper.  In  making  their  recommendations  they  may  state 
and  use  any  official  or  i^ersonal  knowledge  which  any  member  of  the  board  may 
have  touching  such  claims. 

667.  Report  on  such  claims. 

Sec  667.  The  board  must  make  up  their  report  and  recommendations  at  least 
thirty  days  before  the  meeting  of  the  legislature.  A  brief  abstract  of  their 
report,  showing  the  claims  rejected,  and  those,  or  the  amounts  thereof,  allowed, 
must  be  published  in  a  newspaper  published  at  Sacramento  city  for  such  time 
as  the  board  may  prescribe  before  the  meeting  of  the  legislature. 

668.  Disqualifications. 

Sec  668.  No  member  of  the  board  must  act  upon  any  claim  in  which  he  is 
interested,  or  for  expenditures  incurred  in  his  office,  nor  must  he  be  present 
when  the  decision  thereon  is  made. 

669.  Treasurer  to  act  in  place  of  disqualified  members. 

Sec  669.  When  any  member  of  the  board  is  disqualified  from  acting  upon 
any  claim,  the  state  treasurer  must  act  in  his  stead. 

670.  Restrictions  on  power  of  hoard. 

Sec  670.  The  board  must  not  entertain,  for  the  second  time,  a  demand 
against  the  state  once  rejected  by  it  or  by  the  legislature,  unless  such  facts  are 
presented  to  the  board  as  in  suits  between  individuals  would  furnish  sufficient 
ground  for  granting  a  new  trial, 

671.  Appeals. 

Sec  671.  Any  person  interested,  who  is  aggrieved  by  the  disajoproval  of  a 
claim  by  the  board,  may  appeal  from  the  decision  to  the  legislature  of  the  state, 
by  filing  with  the  board  a  notice  thereof,  and  upon  the  receipt  of  such  notice 
the  board  must  transmit  the  demand  and  all  the  papers  accompanying  the  same, 
vvith  a  statement  of  the  evidence  taken  before  it,  to  the  legislature. 

672.  Controller  not  to  di'aio  warrant  for  any  claims  not  audited  by  examiners. 
Sec  672.  The  controller  must  not  draw  his  warrant  for  any  claim  unless  it 

has  been  approved  by  the  board,  and  when,  hereafter,  the  controller  is  directed 

155 


672-680  POLITICAL  CODE. 

to  draw  bis  warrant  for  any  purpose,  tliis  direction  must  be  construed  as  subject 
to  the  provisions  of  this  section,  unless  the  direction  is  accompanied  by  a  special 
provision  exempting  it  from  its  operation, 

673.  Certain  claims  exempted. 

Sec.  673.  Claims  upon  the  contingent  fund  of  either  house  of  the  legislature, 
and  for  official  salaries,  are  exempted  from  the  operations  of  the  j^ro visions  of 
the  jn-eceding  twelve  sections. 

674.  Board  may  prevent  payynent  of  controller's  xcarrants,  ivhen. 

Sec.  674.  Whenever  the  board  has  reason  to  believe  that  the  controller  has 
di'awn  or  is  about  to  draw  his  warrant  without  authority  of  law,  or  for  a  larger 
amount  than  the  state  actually  owes,  the  board  must  notify  the  treasurer  of  state 
not  to  i)ay  the  warrant  so  drawn  or  to  be  drawn ;  and  thereupon  the  treasurer  is 
prohibited  from  paying  the  waiTant,  whether  already  drawn  or  not,  until  he  is 
otherwise  directed  by  the  legislature. 

675.  3Iust  examine  books  of  controller  and  treasurer. 

Sec.  675.  As  often  as  it  may  deem  proper  the  board  must  examine  the  books 
of  the  controller  and  treasurer,  the  accounts  and  vouchers  in  their  offices,  and 
count  the  money  in  the  treasmy;  and  for  that  i:)urpose  they  may  demand,  and 
the  controller  and  treasurer  must  furnish  without  delay,  all  information  touching 
the  books,  papers,  vouchers  or  matters  pertaining  to  their  offices. 

676.  Ahist  count  money  in  treasury. 

Sec.  676.  The  counting  of  the  moneys  in  the  state  treasury  must  take  place 
at  least  once  a  month,  without  the  board  or  any  member  thereof  giving  the 
treasurer  any  previous  notice  of  the  day  or  hour  of  counting.  The  board  may 
at  any  counting,  place  any  sum  in  bags  or  boxes,  and  weigh  each  bag  or  box 
separately,  and  mark  the  same  with  the  weight  thereon  plainly  specified,  and 
l^lace  thereon  a  seal,  to  be  kej^t  by  them,  and  may  at  subsequent  countings 
count  or  reweigh  each  bag  or  box  separately',  and  estimate  the  contents  of  such 
bags  or  boxes  as  part  of  the  money  counted  by  them  without  making  a  detailed 
count  of  its  contents. 

677.  Must  make  affidavit  thereof. 

Sec  677.  Thej'  must  at  least  once  in  each  month  make  and  file  in  the  office 
of  the  secretary  of  state,  and  publish  in  some  newspaper  in  Sacramento  city,  an 
affidavit  showing: 

1.  The  amount  of  money  that  ought  to  be  in  the  state  treasury; 

2.  The  amount  and  kind  of  money  actually  therein. 

678.  Controller  and  treasurer  must  permit  examinalion  and  counting. 

Sec.  678.  The  controller  and  treasurer  must  jDermit  the  board  of  examiners 
to  examine  the  books  and  papers  in  their  respective  offices;  and  the  treasurer 
must  permit  the  moneys  in  the  treasury,  without  delay  on  any  pretense  what- 
ever, to  be  counted  whenever  the  board  may  wish  to  make  an  examination  or 
counting. 

679.  Prinlinc)  expert. 

Sec  679.  The  board  must  appoint  a  printing  expert,  who  must  examine  and 
report  to  the  board  all  accounts  for  jn-inting  presented  b}'  the  state  printer  or 
any  other  person,  specifying  whether  the  work  has  been  executed  in  a  work- 
manlike manner  or  not,  and  the  amount  for  which  the  same  should  be  allowed. 
The  rejiort  is  not  conclusive  on  the  board,  but  is  in  aid  of  the  discharge  of  their 
duties.  The  expert  must  receive  a  salary  of  fifty  dollars  a  month,  payable  on 
the  last  day  of  each  month. 

680.  Conversion  of  school  fund  into  bonds. 

Sec  680.  Whenever  and  as  often  as  there  is  in  the  state  treasuiy  the  sum  of 

156 


PUBLIC  OFFICERS.  680-C85 

ten  thousand  dollars,  as  proceeds  of  the  sale  of  state  school  lands,  the  board 
must  invest  the  same  in  civil  funded  bonds  of  this  state,  or  in  bonds  of  the 
United  States,  at  the  lowest  price  at  which  they  may  be  offered  by  the  holders 
thereof,  and  as  prescribed  in  the  succeeding  section. 

681.  Advertisement. 

Sec.  681.  The  board  must  advertise  for  thirty  days  in  one  daily  newspaper  pub- 
lished in  each  of  the  cities  of  Sacramento  and  San  Francisco  for  sealed  j^roposals 
for  the  purchase  of  civil  bonds  or  bonds  of  the  United  States.  At  the  expiration 
of  thirty  days  from  the  first  publication  of  the  advertisement  the  board  must 
open  the  bids  at  the  time  and  place  specified  in  the  advertisement  therefor,  in 
the  presence  of  the  treasurer  and  controller  of  state.  They  may  accept  or  reject 
all  bids  at  their  pleasure;  but  if  they  accept  any  bids  they  must  accept  the 
bids  ofi'ering"  such  bonds  at  the  lowest  price;  but  no  bids  must  be  considered 
unless  accompanied  by  the  bonds. 

682.  Application  of  bonds  purchased . 

Sec.  682.  The  board  must  thereupon  certify  the  accepted  bids  to  the  con- 
troller, who  must  draw  his  warrant  in  favor  of  the  successful  bidders  for  the 
amount  respectively  due,  and  the  state  treasurer  must  pay  the  same  from  the 
proceeds  of  the  sale  of  school  lands,  and  the  board  must  deliver  the  bonds  so 
l^urchased  to  the  state  treasurer,  who  must  keep  them  as  a  special  school  fund 
deposit,  the  interest  upon  such  bonds  to  be  subject  to  such  disposition  as  is 
provided  in  the  title  of  this  code  relating  to  common  schools. 

683.  Purchase  of  state  bonds. 

Sec  683.  At  any  sale  of  civil  bonds  by  the  state  treasurer  the  board  may 
become  bidders  and  i:)urchase  bonds  with  the  funds  at  their  disposal,  and  the 
appropriate  transfer  of  funds  must  be  made  by  the  controller  and  treasurer  on 
the  books  of  their  ofiices. 

684.  Salary  of  members. 

Sec  684.  The  annual  salary  of  each  member  of  the  board,  except  the  attor- 
ney-general, is  one  thousand  dollars.  The  annual  salary  of  the  attorney-gen- 
eral for  services  performed  under  this  ai^ticle  is  fifteen  hundred  dollai's. 

685.  Salary  of  clerk. 

Sec  685.  The  annual  salary  of  the  clei'k  of  the  board  is  twelve  hundred 
dollars. 

An  Act  prescribing  certain  duties  to  be  performed  by  the  state  coutroller,  state  treasurer, 

and  state  board  of  examiners. 

Approved  February  20,  1872;  1871-2,  118. 

Rep)orts  of  warrants  drawn  by  controller. 

Section  1.  The  state  controller  shall  furnish  to  the  state  treasurer,  on  the 
tenth,  twentieth,  and  last  days  of  each  month,  and  when  either  of  these  days 
falls  upon  a  day  on  which  the  state  controller  is  not  required  to  keep  his  ofiice 
open  for  the  transaction  of  business,  then  upon  the  day  immediately  preceding 
the  days  herein  mentioned,  with  a  report  of  all  warrants  drawn  by  him  upon 
the  treasurer  since  the  date  of  his  last  report.  Such  report  shall  show  the 
number,  date,  and  amount  of  each  warrant,  to  whom  issued,  and  the  fund  out 
of  which  it  is  payable.  From  the  report  so  furnished  by  the  controller,  the 
state  treasurer  shall  make  a  register  of  warrants,  and  shall  pay  all  warrants  in 
the  order  in  which  they  are  drawn  by  the  controller. 
Report  of  warirmts  paid  by  treasurer. 

Sec  2.  Upon  the  last  day  of  each  month,  except  when  such  last  day  falls 
upon  a  day  on  which  the  state  treasurer  is  not  required  by  law  to  keep  his 
office  open  for  the  transaction  of  business,  then  upon  the  day  immediately  pre- 

157 


085  POLITICAL  CODE. 

ceding  such  last  clay,  the  state  treasurer  shall  furnish  the  state  controller  with 
a  list  of  all  warrants  paid  hy  him  since  the  date  on  which  his  last  list  was  fur- 
nished.    Such  list  shall  contain  the  number,  date,  and  amount  of  each  warrant, 
and  the  fund  out  of  which  the  same  was  paid. 
Adjustment  of  balances  in  treasury. 

Sec.  3.  Immediately  after  the  passage  of  this  act,  it  shall  he  the  duty  of  the 
state  controller  and  state  treasurer,  under  the  supervision  of  the  governor,  to 
ascertain  the  numbers,  dates,  and  amounts  of  the  several  warrants  drawn  by 
the  controller,  and  then  unpaid  by  the  treasurer,  and  to  adjust  the  balances  in 
the  several  fiinds  of  the  state  treasurer  upon  the  books  of  the  controller  and 
treasurer,  in  accordance  with  the  sums  found,  to  the  credit  of  each  on  the  books 
of  the  controller,  and  the  warrants  found  to  be  outstanding  and  not  joaid  by 
the  treasurer. 

Examiners  to  count  money,  etc. 

Sec.  4.  "When  the  balances  in  the  several  funds  of  the  state  treasury  shall  be 
adjusted  as  provided  for  in  the  next  preceding  section,  the  state  board  of  ex- 
aminers shall  count  the  money  in  the  state  treasury,  and  compare  the  amount 
■with  the  amount  found  to  be  in  all  the  funds  of  the  state  treasury  by  the  books 
of  the  state  controller,  and  upon  the  first  business  day  of  each  month  thereafter 
the  state  controller  shall  furnish  the  state  board  of  examiners  with  a  statement 
of  the  amount  of  money  in  each  fund  of  the  state  treasury,  and  the  total  amount 
as  the  same  aj)pears  upon  the  books  of  his  office,  together  with  a  list  of  war- 
rants issued  by  him  but  not  paid  by  the  state  treasurer,  and  for  the  payment  of 
which  there  is  money  in  the  state  treasury.  Upon  the  receipt  of  such  statement 
from  the  controller,  the  state  board  of  examiners  shall  proceed  to  count  the 
money  in  the  state  treasury,  and  compare  the  amount  with  the  amount  named 
in  the  statement  of  the  controller. 
Cancellation  of  warrants  uncalled  for. 

Sec  5.  Whenever  any  warrant  issued  by  the  state  controller  shall  remain  in 
his  office  uncalled  for  by  the-owner  thereof  for  the  period  of  one  year  after  such 
warrant  has  become  payable,  it  shall  be  the  duty  of  the  controller  and  treasurer, 
in  the  presence  of  the  state  board  of  examiners,  to  cancel  the  same;  and  when- 
ever any  warrant,  delivered  to  the  owner  thereof  by  the  controller,  but  not 
presented  to  the  state  treasurer  for  payment  for  a  period  of  one  year  after  such 
warrant  has  become  payable,  said  warrant  shall  be  deemed  to  be  canceled,  and 
the  treasurer  shall,  in  the  presence  of  the  controller  and  state  board  of  ex- 
aminers, write  the  word  "canceled"  opposite  the  entry  of  such  warrant  in  his 
registry  of  warrants  provided  for  in  the  first  section  of  this  act.  The  word 
"canceled"  shall  also  be  written  by  the  state  controller  opposite  the  entry  in 
the  warrant  register  in  his  office,  of  all  warrants  required  to  be  canceled  by  this 
act.  The  amounts  of  all  warrants  canceled  under  the  provisions  of  this  act 
shall  revert  to  the  fund  in  the  state  treasury  against  which  said  warrants  were 
drawn,  and  shall  be  entered  upon  the  books  of  the  controller  to  the  credit  of 
such  fund,  in  the  same  manner  as  other  moneys  paid  into  the  state  treasury. 

JRegisier  of  canceled  warrants — Reissue. 

Sec.  G.  The  controller  and  treasurer  shall  each  keep  a  register  of  warrants 
canceled  under  this  act,  in  which  shall  be  entered  the  number,  date,  and 
amount  of  the  warrants,  the  name  of  the  person  in  whose  favor  it  was  drawn, 
the  fund  out  of  which  it  was  payable,  and  the  date  of  cancellation.  Whenever 
the  owner  of  any  warrant  canceled  under  the  provisions  of  this  act  demands 
such  warrant  from  the  controller,  it  shall  be  the  duty  of  the  controller  to  issue 
a  new  warrant  for  the  same  amount,  in  the  name  of  the  same  person,  and  pay- 
able out  of  the  same  fund  as  the  warrant  canceled;  and  in  case  where  a  warrant 

158 


PUBLIC  OFFICERS.  685 

issued  hy  the  controller,  but  not  i:)aid  by  the  treasurer,  lias  been  canceled,  and 
the  owner  or  holder  thereof  presents  the  same  for  payment,  it  shall  be  the  duty 
of  the  state  conti'oller  to  drawa  new  warrant  therefor,  in  the  name  of  the  same 
person,  for  the  same  amount,  and  payable  out  of  the  same  fund  as  the  original 
warrant,  and  such  original  warrant  shall  thereupon  be  canceled  by  bim  and 
retained  in  his  office  as  his  voucher  for  issuing  such  new  warrant.  In  all  cases 
where  a  warrant  shall  be  issued  in  lieu  of  one  canceled,  the  word  "  duplicate  " 
shall  be  plainly  written  or  printed  across  the  face  thereof,  in  red  ink,  by  the 
controller,  and  the  issue  thereof  noted  on  the  registry  of  canceled  warrants 
kept  in  his  office,  and  when  any  such  duplicate  Avarrant  is  paid  by  the  state 
treasurer  he  shall  note  the  payment  thereof  on  the  registiy  of  canceled  warrants 
kept  in  his  office. 

Interest  coupons. 

Sec.  7.  Whenever  the  interest  coujDons  attached  to  any  registered  bond  of 
this  state  issued  under  either  of  the  following  named  acts,  to  wit:  an  Act  to 
provide  for  paying  certain  equitable  claims  against  the  State  of  California,  and 
to  contract  a  funded  debt  for  that  purpose,  approved  April  28,  1857;  an  Act  to 
amend  an  act  entitled  an  act  to  provide  for  paying  certain  equitable  claims 
against  the  State  of  California,  and  to  contract  a  funded  debt  for  that  purpose, 
approved  April  28,  1857,  approved  April  27,  1860;  an  Act  for  the  relief  of  the 
enlisted  men  of  the  California  volunteers  in  the  service  of  the  United  States, 
aj)proved  April  27,  1863;  an  Act  granting  bounties  to  the  volunteers  of  this 
state,  enlisted  in  the  service  of  the  United  States,  for  issuing  bonds  to  provide 
funds  for  the  payment  of  the  same,  and  to  levy  a  tax  to  pay  such  bonds, 
approved  April  4,  1864;  and  an  Act  authorizing  the  issuance  of  state  bonds  to 
the  amount  of  two  hundred  and  fifty  thousand  dollars,  to  be  known  as  state 
capitol  bonds,  approved  April  4,  1870,  shall  not  be  presented  to  the  state 
treasurer  for  j^ayment  for  a  j)eriod  of  one  year  after  such  coupon  has  become 
due  and  joayable,  it  shall  be  the  duty  of  the  state  treasurer  to  furnish  the  state 
controller  and  state  board  of  examiners  each  with  a  list  of  such  coupons  not 
presented  for  payment,  with  the  amount  thereof ,  whereupon  the  state  controller 
shall  order  the  treasurer  to  pla  ce  the  money  held  by  him  for  the  payment  of 
such  coupons  into  the  general  fund  of  the  state  treasury,  and  the  amount  so 
ordered  into  the  general  fund  shall  be  placed  to  the  credit  of  said  fund  on  the 
books  of  the  controller  and  treasurer  in  the  same  manner  as  other  moneys  paid 
into  the  state  treasury. 

Payment  of  interest  coupons. 

Sec.  8.  Whenever  any  of  the  interest  coupons  mentioned  in  the  seventh 
section  of  this  act  are  presented  for  payment,  after  the  money  to  pay  the  same 
has  been  transferred  to  the  general  fund,  such  coupons  shall  be  presented  to 
the  state  board  of  examiners,  which  board  shall  audit  and  allow  them  out  of 
the  general  fund  of  the  state  treasury,  and  shall  transmit  a  voucher  to  the  state 
controller  upon  which  to  draw  his  warrant  upon  the  state  treasurer.  Upon  the 
presentation  of  such  warrant  and  the  surrender  to  him  of  the  coupons  for  the 
payment  of  which  the  said  warrant  is  drawn,  the  state  treasurer  shall  pay  the 
same  out  of  the  general  fund. 

Sec  9.  Immediately  after  the  passage  of  this  act  the  state  board  of  examiners 
shall  examine  the  books  in  the  state  treasurer's  office  in  which  are  pasted  the 
coupons  of  the  registered  bonds  of  the  state  paid  by  him,  and  shall  require  the 
state  treasurer  to  make  out  a  list  of  all  coupons  not  found  therein,  as  provided 
!  for  in  section  seven  of  this  act,  and  the  m  oney  held  by  him  for  the  payment 
thereof  shall  be  placed  in  the  general  fund  as  provided  in  this  act. 

Sec  10.  This  act  shall  take  effect  from  and  after  its  passage. 

159 


G85  POLITICAL  CODE. 

An  Act  to  provide  for  the  purchase  of  certain  supijlies  for  state  oflScers  and  memliers  of  the 
legislature. 

Approved  March  16,  1876;  1875-6,  314. 

Board  of  examiners  constituted  a  furnishing  board. 

Section  1.  The  state  board  of  examiners  is  hereby  constituted  ex  officio  a 
furnishing  board,  with  the  powers  and  duties  hereinafter  specified. 

To  advertise  for  bids  to  furnish  supplies. 

Sec.  2.  It  shall  be  the  duty  of  said  board,  as  often  as  it  shall  become  neces- 
sary, to  advertise  for  twenty  days  in  two  daily  newspapers  published  in  the  city 
of  San  Francisco,  and  one  daily  newspaper  published  in  the  city  of  Sacramento, 
for  sealed  projjosals  to  furnish  stationery,  blank  books,  material  for  lights, 
fuel,  and  such  other  articles  necessary  for  the  use  of  said  state  and  legislative 
officers  as  are  entitled  thereto,  or  any  of  them;  and  said  board  shall  specify  in 
said  advertisement  the  amount  and  kinds  of  each  article  desired,  samples  or 
minute  descrii^tions  of  which  shall  accompany  and  be  deposited,  with  the 
sealed  proposals  for  furnishing  the  same,  in  the  office  of  the  secretary  of  state; 
and  all  proposals  received  as  aforesaid  shall  be  opened  and  compared  by  said 
board,  any  two  of  whom  shall  constitute  a  quorum,  at  the  governor's  office,  at 
twelve  o'clock  m.  of  the  day  specified  in  the  said  advertisement;  and  the  said 
board  shall  then  and  there  award  the  contract  for  furnishing  said  supplies,  or 
any  of  them,  to  the  lowest  bidder,  whose  sealed  bid  shall  be  accompanied  by  a 

bond  with  two  or  more  sureties,  in  the  sum  of  $ ,  the  sum  to  be  not  less 

than  twice  the  amount  of  the  value  of  the  articles  to  be  supplied,  payable  to 
the  people  of  the  State  of  California,  conditioned  that  if  the  bidder  shall  receive 
the  award  of  said  contract  he  will,  in  ten  days  thereafter,  deliver  the  supplies 
or  articles  for  which  he  has  been  awarded  the  contract;  provided,  that  in  their 
said  advertisement  said  board  may  classify  said  supplies  and  articles,  and  may 
receive  bids  and  award  contracts  for  such  separate  articles  or  class  of  supplies 
as  they  shall  deem  the  lowest  and  best;  provided  further,  that  said  board  may 
require  any  class  or  aiiicles  of  said  supplies  to  be  dehvered  in  installments,  and 
jDaid  for  on  delivery;  jorovided  further,  that  any  and  all  bids  which  shall  be 
deemed  too  high  by  said  board  may  be  declined,  in  which  case  said  board  shall 
again  advertise  for  sealed  proposals  to  furnish  the  classes  or  articles  of  supply 
so  declined,  and  so  on  for  the  same  cause,  as  often  as  it  shall  occur;  and  pro- 
vided further,  that  in  such  case,  said  board  may  purchase  any  articles  or 
supplies  for  which  bids  have  been  rejected  as  aforesaid,  in  open  market,  and  in 
amounts  sufficient  for  immediate  necessities,  but  at  prices  not  exceeding  the 
lowest  prices  in  the  bids  rejected. 

Secretary  of  state  to  open  stationery  accounts. 

Sec.  3.  It  shall  be  the  duty  of  the  secretary  of  state,  immediately  after  the 
passage  of  this  act,  to  take  a  full  and  complete  inventory  of  all  stationery, 
blank  books,  and  other  aiiicles  and  supplies  aforesaid,  then  on  hand,  and  enter 
the  same  in  a  set  of  books  to  be  kept  for  that  purpose,  making  a  separate 
account  for  each  class  of  articles;  and  in  like  manner  he  shall  enter  in  said 
books  a  detailed  and  classified  account  of  all  purchases  of  articles  and  supplies 
authorized  by  this  act,  showing  the  amount  and  cost  of  each  article  and  class 
of  supplies  purchased,  the  amount  and  cost  of  each  class  issued,  amount  and 
cost  of  each  article  and  class  issued  to  each  state  officer  and  member  of  the 
legislature,  and  amount  and  cost  of  each  article  and  class  on  hand.  He  shall 
issue  the  supplies  aforesaid  only  ujion  the  rec[uisition  of  the  proper  officer,  and 
shall  take  a  receipt  for  the  same  upon  delivery,  which  requisition  and  receipt 
shall  be  filed  and  preserved  in  his  office. 

IGO 


PUBLIC  OFFICERS.  G85-700 

Board  to  take  inventory  of  siippUes. 

Sec.  4.  It  shall  be  the  duty  of  said  board,  at  the  end  of  each  fiscal  year,  and 
at  such  other  times  as  they  shall  deem  necessary,  to  cause  an  inventory  to  be 
taken  of  all  the  articles  and  classes  of  said  supplies  on  hand  and  contracted  for, 
and  to  make  an  examination  of  the  amounts  and  vouchers  aj^pertaining  to  the 
same. 

Board  to  report  to  legislature. 

Sec.  5.  It  shall  be  the  duty  of  said  board,  at  least  one  month  previous  to  the 
assembling  of  each  legislature,  to  advertise,  in  accordance  with  section  two  of 
this  act,  for  a  sujDply  of  stationery,  fuel,  and  such  other  articles  as  shall  be 
sufficient  for  the  use  of  the  state  officers  and  members  of  the  legislature,  or 
necessary  for  the  public  service,  and  at  the  commencement  of  each  session  said 
board  shall  report  to  the  legislature  a  full  account  of  their  receipts  and  expen- 
ditures, and  stock  of  supplies  on  hand. 

Expenses  of  board. 

Sec.  6.  The  actual  exjDenses  incurred  by  said  board  in  executing  the  powers 
and  discharging  the  duties  jirescribed  and  imposed  in  this  act,  when  certified 
by  them,  shall  be  audited  by  the  controller,  and  paid  by  the  treasurer  of  said 
state  out  of  any  money  which  shall  have  been  appropriated  for  that  purpose ; 
provided,  nothing  in  this  act  shall  be  construed  as  allowing  salary  or  compen- 
sation to  said  furnishing  board  for  any  service  performed  as  such  board. 

Sec.  7.  All  acts  and  parts  of  acts  in  conflict  with  this  act  are  hereby  re- 
pealed. 

ARTICLE  XIX. 

POWERS    AND    DUTIES    OF    OTHER    EXECUTIVE    OFFICERS. 

695.  Vaccine  agent. 

Sec.  695.  The  powers  and  duties  of  the  vaccine  agent  are  prescribed  in  Title 
VII  of  Part  III  of  this  Code.     [See  post,  2993-2994.] 

696.  Commissioner  of  immigration. 

Sec.  696.  Those  of  the  commissioner  of  immigration  are  prescribed  in  Title 
VII,  Part  III  of  this  Code.     [See  post,  2964-2968.] 

697.  State  capital  commissioners. 

Sec.  697.  Those  of  the  state  capitol  commissioners  are  prescribed  by  "  An 
Act  to  provide  for  the  construction  of  the  state  capitol  in  the  city  of  Sacra- 
mento," approved  March  twenty-ninth,  eighteen  hundred  and  sixty,  and  the 
acts  amendatory  thereof,  which  are  hereby  continued  in  force. 

698.  [Sec.  698,'^'  relating  to  the  tide  land  commissioners,  was  rej)ealed  by  act 
of  February  4,  1876;  Amendments,  1875-6,  15;  took  effect  from  passage.  See 
the  act,  ante,  365.] 

699.  Port  wardens. 

Sec.  699.  Those  of  port  wardens  are  prescribed  in  Title  VI  of  Part  III  of  this 
Code.     [See  post,  2501-2511.] 

700.  Ha7'hor  commissioners. 

Sec.  700.  Those  of  harbor  commissioners  are  prescribed  in  Title  VI  of  Part 
III  of  this  Code.     [See  post,  2521-2572.] 

(a)  Repealed  section:  and  sixty-eight,  and  the  acts  amendatory  thereof,  ap- 

Sec.  698.  Those  of  the  tide  land  commissioners  are  proved  April    first,  eighteen  hundred  and    seventy, 

prescribed  by  "An  Act  to  survey  and  dispose  of  certain  which  are  hereby  continued  in  force. 

salt  mursh  and  tide  lands  belonging  to  the  State  of  Cal-  The  acts  referred  to  in  this  repealed  section  were  also 

ifornia,"  approved  March  thirtieth,  eighteen  hundred  repealed  by  the  act  of  February  i,  1876;  see  ante,  365. 

11  161 


701-715  POLITICAL  CODE. 

701.  Pilots. 

Sec.  701.  Those  of  pilots  are  prescribed  in  Title  YI  of  Part  III  of  this  Code. 
[See  post,  2429-2401.] 

702.  [Sec.  702/"^  relating  to  the  San  Francisco  marine  board,  was  repealed  by 
act  of  January  13,  1876;  Amendments,  1875-G,  14;  took  effect  immediately.] 

703.  Pilot  commissioyiei'S. 

Sec  703.  Those  of  pilot  commissioners  are  prescribed  in  Title  YI  of  Part 
III  of  this  Code.     [See  post,  2429-2591.] 

704.  Boards  of  health. 

Sec.  704.  Those  of  the  boards  of  health  are  prescribed  in  Title  YII  of  Part 
III  of  this  Code.     [See  post,  2978-3082.] 

705.  Board  of  agriculture. 

Sec  705.  Those  of  the  board  of  agriculture  are  prescribed  in  the  special 
statute  creating  the  board. 

706.  Board  of  equalization. 

Sec  706.  Those  of  the  board  of  equalization  are  prescribed  in  Title  IX  of 
Part  III  of  this  Code.     [See  post,  3672-3705.] 

707.  Begents  of  university. 

Sec  707.  Those  of  the  regents  of  the  university  of  California  in  Chapter  I  of 
Title  III  of  Part  III.     [See  post,  1425-1451.] 

708.  State  board  of  education. 

Sec  708.  Those  of  the  state  board  of  education  are  prescribed  in  Chapter  III 
of  Title  III  of  Part  III  of  this  Code.     [See  post,  1517-1532.] 

709.  Trustees  of  normal  school. 

Sec  709.  Those  of  the  trustees  of  the  state  normal  school  are  prescribed  in 
Chapter  II  of  Title  III  of  Part  III  of  this  Code.     [See  post,  1487-1507. ] 

710.  Officers  of  libraries. 

Sec  710.  Those  of  the  trustees  of  the  state  library,  state  librarian  and  libra- 
rian of  the  supreme  court  library,  are  prescribed  in  Chapter  III  of  Title  V  of 
Part  III  of  this  Code.     [See  post,  2292-2316.] 

711.  Directors  of  state  prison. 

Sec.  711.  Those  of  the  directors  of  the  state  prison  are  prescribed  in  Part  III 
of  The  Penai.  Code.     [See  post,  14,573-14,595.] 

712.  Officers  of  insane  asylum. 

Sec  712.  Those  of  the  directors  and  other  officers  of  the  insane  asylum  are 
prescribed  in  Chapter  I  of  Title  Y  of  Part  III  of  this  Code.  [See  post,  2136- 
2222.1 

713.  Trustees  of  asylum  for  deaf,  dumb,  and  blind. 

Sec  713.  Those  of  the  trustees  of  the  asylum  for  the  deaf,  dumb,  and  blind, 
are  j^rescribed  in  Chapter  II  of  Title  V  of  Part  III  of  this  Code.  [See  post, 
2237-2282.] 

714.  Trustees  of  state  burying  grounds. 

Sec  714.  Those  of  the  trustees  of  the  state  burying  grounds  are  jDi'escribed  in 
Title  YIII  of  Part  III  of  this  Code.     [See  post,  3597.] 

715.  Yosemife  and  liig  'Tree  commissioners. 

Sec  715.  Those  of  the  commissioners  of  the  Yosemite  valley  and  the  Mariposa 
big  tree  grove  are  prescribed  in  Title  VIII  of  Part  III  of  this  Code.  [See  post, 
3584-3586.] 

(a)  Repealed  Bection:  the  port  of  San  Francisco  are  prescribed  In  Title  VI  of 

Sec.  702.  ThoBe  of  members  of  the  marine  board  for     Part  III  of  this  Code. 

162 


PUBLIC  OFFICERS.  726-739 

CHAPTER  IV. 

JUDICIAL   OFFICERS. 

726.   Number,  designation,  and  mode  of  election. 

Sec.  72G.  The  number,  designation,  and  mode  of  election  of  judicial  officers 
are  fixed  in  Title  I,  Part  I  of  The  Code  or  Civil  Pkoceduke.     [See  post,  10,033.] 

CHAPTER  V. 

SALARIES    OF    JUSTICES    OF    THE    SUPREME    COURT   AND    DISTRICT    JUDGES,    AND 
OFFICERS   CONNECTED   WITH   THE   SUPREME   COURT. 

736.  Salary  of  justices  of  supreme  court. 

Sec.  736.  The  annual  salaiy  of  each  justice  of  the  supreme  court  is  six  thou- 
sand dollars. 

737.  Salary  of  district  judges. 

Sec  737.  The  annual  salaries  of  the  judges  of  the  third,  fourth,  sixth, 
twelfth,  fifteenth,  and  nineteenth  judicial  districts  are  six  thousand  dollars 
each.  [Amendment,  approved  Mar-ch  30,  1874;  Amendments  1873-4,  12;  took 
effect  July  6,  1874.<''> 

738.  Salary  of  district  judges. 

Sec.  738.  The  annual  salaries  of  the  judges  of  the  other  districts  are  five 
thousand  dollars  each. 

An  Act  to  regulate  the  salary  of  the  district  judge  of  the  sixteenth  judicial  district. 
Approved  March  30,  1872  ;    1871  2,  796. 

Salary  of  sixteenth  district  judge. 

Sec  1.  The  salary  of  the  district  judge  of  the  sixteenth  judicial  district  of 
the  State  of  California  shall  be  five  thousand  dollars  per  annum  from  and  after 
the  first  day  of  January,  a.  d.  eighteen  hundred  and  seventy-four. 

[The  salary  of  the  district  judge  of  the  twenty-first  judicial  district  is  fixed 
at  four  thousand  dollars  per  annum  by  section  6  of  the  act  of  February  15, 
1876;  1875-6,  58,  creating  that  district.     See  ante,  142. 

The  salary  of  the  district  judge  of  the  twenty-second  judicial  district  is  fixed 
at  five  thousand  dollars  per  annum  by  section  6  of  the  act  of  March  29,  1876; 
1875-6,  528,  creating  that  district.     See  ante,  142.] 

739.  Salaries  of  officers  connected  with  the  supreme  court. 

Sec  739.  The  annual  salaries  of  the  officers  connected  with  the  supreme  court 
are  as  follows : 
The  reporter  of  the  decisions,  six  thousand  dollars; 
The  phonographic  reporter,  three  thousand  dollars; 
The  secretary,  three  thousand  dollars; 
The  bailiff,  twelve  hundred  dollars. 


I  CHAPTER  VI. 

'  MINISTERIAL   AND   OTHER   OFFICERS   CONNECTED   WITH   THE  COURTS. 

,  Abticle  I.  Cleek  of  the  Supreme  Court 749 

I  II.  Kepokters  of  the  Supreme  Court 767 

III.  Notaries  Public 791 

IV.  Commissioners  of  Deeds 811 

V.  Other  Officers 827 

(a)  The  original  section  did  not  include  the  third  and  nineteenth  judicial  districts. 

163 


749-756  POLITICAL  CODE. 

AETICLE  I. 

CLEEK  OF  THE  SUPREME  COUET, 

749.  Election  and  term  ofo-ffice. 

Sec.  749.  The  clerk  of  the  supreme  court  is  elected  at  the  same  time  the 
governor  is  elected,  and  holds  his  office  for  the  term  of  four  years  from  and 
after  the  first  Monday  in  December  next  succeeding  his  election. 

750.  General  duties. 

Sec  750.  The  clerk  of  the  supreme  court  must  perfoim  such  duties  as  are 
prescribed  in  the  Penal  Code  and  Code  of  Civil  Procedure,  and  such  duties  as 
may  be  reqiiired  of  him  by  the  rules  and  practice  of  the  court. 

751.  3Iay  appoint  two  deputies. 

Sec  751.  He  may  appoint  two  deputies.  [Amendment,  approved  January  20, 
1876;  Amendments  1875-6,  23;  took  effect  immediately.^"^ 

752.  Fees. 

Sec  752.  He  must  collect,  in  United  States  coin,  the  following  fees: 

For  each  civil  case  appealed  to  the  supreme  court,  fifteen  dollars  (payable 
when  the  transcript  is  filed),  in  full  for  all  serAdces  rendered  in  each  case  up  to 
and  including  remittitur  to  court  below; 

For  dismissing  on  clerk's  certificate,  two  dollars  and  fifty  cents; 

For  all  services  rendered  in  each  original  proceeding,  ten  dollars; 

For  certificate  of  admission  as  attorney  and  counselor,  ten  dollars; 

For  making  and  certifying  each  copy  of  any  jDaper,  document,  or  record  in 
his  office,  the  sum  of  fifteen  cents  per  folio;  but  this  fee  must  not  be  taxed 
against  the  2:)arties  to  suits  for  an}'  paper  or  copies  of  papers  necessary  up  to 
and  including  the  remittitur. 

753.  Disposition  of  fees. 

Sec  753.  All  fees  collected  by  him,  except  such  as  may  be  collected  under  the 
laws  in  force  prior  to  the  first  day  of  December,  eighteen  hundred  and  sixty- 
seven,  must  be  paid  into  the  state  treasury;  eighty  per  cent,  thereof  to  the 
credit  of  the  general  fund,  and  twenty  per  cent,  thereof  to  the  credit  of  the 
supreme  court  library  fund. 

754.  Settlements,  ivhen  and  how  made. 

Sec  754.  He  is  responsible  and  must  account  for,  and  in  his  settlements  with 
tlie  controller  must  be  charged  with,  the  full  amount  of  all  fees  collected  or 
cliargeable  and  accruing  in  causes  brought  into  the  court  for  services  rendered 
therein  up  to  the  time  of  each  settlement  (except  such  fees  as  are  collected  under 
the  laws  referred  to  in  the  jireceding  section),  and  must  at  the  end  of  eveiy 
month  pay  the  same  into  the  state  treasury.  He  must  also,  at  the  end  of  every 
month,  render  to  the  controller  of  state,  in  such  fonn  as  that  officer  jn-escribes, 
an  account  in  detail,  under  his  own  oath,  of  all  fees  chargeable  and  accnaing  iu 
causes  brought)  into  court  and  not  included  in  his  previous  accounts  rendered. 
His  salaiy  must  not  be  allowed  or  paid  until  all  fees  so  accruing,  and  for  which 
he  is  chargeable,  have  been  accounted  for  and  paid  over. 

755.  Salary  of  clerk. 

Sec  755.  The  annual  salary  of  the  clerk  of  the  supi-eme  court  is  four  thou- 
sand dollars. 

756.  Salary  of  deputies. 

Sec  756.  The  annual  salary  of  the  deputy  clerks  is  eighteen  hundred  dol- 
lars.    The  salaiy  of  one  of  said  deputies  shall  be  paid  by  the  city  and  county 

(a)  The  origiuul  fiectiou  instead  of  "  two  (Icputies  "  bad  the  words  "  one  deputy." 

164 


PUBLIC  OFFICERS.  75G-77G 

of  San  Francisco.    [Amendment,  approved  January  20, 1S7G;  Amendments  1875-6, 
23;  took  effect  immediately}"^ 
757.  Official  bond. 

Sec.  757.  The  clerk  of  the  supreme  court  must  execute  an  official  bond  in  the 
sum  of  ten  thousand  dollars. 

ARTICLE  II. 

REPORTERS    OF    THE    SUPREME    COTJET. 

767.  Reporter  of  decisions,  appointment  and  term. 

Sec  767.  The  supreme  coui-t  may,  by  an  order  entered  upon  the  minutes, 
appoint  a  reporter  of  its  decisions,  to  hold  office  at  its  pleasure. 

768.  Affidavit  to  he  made  by  app)ointee  before  order  is  entered. 

Sec.  768.  After  the  order  is  made,  and  before  it  is  entered  on  the  minutes, 
the  person  named  therein  must  take  and  file  with  the  clerk  an  affida\'it  as 
follows  : 

"I  do  swear  that  I  have  neither  solicited  nor  procured  any  other  person  to 
advise,  suggest,  counsel  or  solicit  my  appointment  to  the  position  of  reporter  of 
the  decisions  of  this  court." 

769.  Phonographic  reporter,  appointment  and  term. 

Sec.  769.  The  sujjreme  court  may  also,  in  like  manner,  appoint  a  phonographic 
reporter  for  the  court,  to  hold  office  at  its  pleasure. 

770.  Duties  of  phonographic  reporter. 

Sec.  770.  It  is  the  duty  of  the  phonographic  reijorter  to  attend  upon  the  court 
during  its  sessions,  and  to: 

1.  Note  the  points  made  by  counsel  in  oral  arguments; 

2.  To  take  down  all  opinions  of  the  court  delivered  orally; 

3.  Write  out  his  notes  in  longhand,  ujDon  the  order  of  the  court,  and  deliver 
such  writing  to  the  reporter  of  the  decisions  of  the  court; 

4.  Perform  such  other  duties  as  may  be  imposed  upon  him  by  the  court  or  a 
justice  thereof. 

771.  General  duties  of  reporter  of  decisions. 

Sec  771.  The  rej)orter  of  the  decisions  of  the  supreme  court  must  prej)are  a 
report  of  such  cases  decided  as  he  may  by  the  court  be  directed  to  report. 

772.  Reports  from  p)honographic  notes. 

Sec  772.  He  must,  from  the  notes  delivered  to  him  by  the  phonographic 
reporter,  prej^are  a  report  of  each  of  the  cases  included  therein,  and  after  pre- 
paring such  report,  must  submit  it  to  the  court  for  correction  and  approval. 

773.  Reports,  what  to  include. 

Sec  773.  Each  report  must  be  made  in  manner  and  form  as  the  court  may 
direct. 

774.  Justices  must  supervise  i^ublication. 

Sec  774.  The  reports  must  be  published  under  the  supervision  of  the  court, 
and  to  that  end  each  of  the  justices  must  be  furnished  by  the  reporter  with  proof 
sheets  of  each  volume  thirty  days  before  its  final  publication. 

775.  Proof  sheets. 

Sec  775.  AVithin  thirty  days  after  such  proof  sheets  are  furnished,  the  justices 
may  return  them  to  the  reporter  with  corrections  or  alterations,  and  he  must 
make  the  corrections  or  alterations  accordingly. 

776.  Original  papers. 

Sec  776.  The  reporter  may  take  the  original  opinions  and  papers  in  each  case 

(a)  The  original  section  had  the  word  "  clerk  "  instead  ot  "  clerks  "  and  did  not  have  the  last  sentence. 

165 


776-781  POLITICAL  CODE. 

from  the  clerk's  office,  and  retain  them  iu  his  possession  not  exceeding  sixty 
days. 

777.  Style  of  reports. 

Sec.  777.  The  reports  must  be  published  iu  -vN-ell-bound  volumes,  and  must 
be  printed  on  good  book  paper,  in  small  pica,  leaded,  and  brevier,  equal  in 
quality  of  paper  and  binding  to  volumes  thirty-three  to  thirty-nine,  inclusive, 
of  California  Re})orts.  [Amendment,  approved  March  24,  1874;  Amendments 
1873-4,  G8;  took  effect  from  passage;  repealed  conflicting  acts.^''^ 

778.  To  he  p»?;Zis7ta/  hij  contract. 

Sec.  778.  The  reporter  shall  have  no  pecuniary  interest  in  the  volumes  of 
reports,  but  they  must  be  published  under  the  supervision  of  the  court  and 
reporter,  by  contract,  to  be  entered  into  by  the  reporter,  secretar}'  of  state,  and 
attorney-general,  with  the  person  or  persons  who  shall  agree  to  piiblish  and 
sell  the  said  reports,  for  a  period  of  ten  years,  on  the  terms  most  advantageous 
to  the  state  and  the  public,  and  at  a  rate  not  to  exceed  four  dollars  per  volume 
of  seven  hundred  pages,  [Aiyiendment,  app)roved  March  24,  1874;  Amendments 
1873-4,  68;  took  effect  from  passage;  repealed  conflicting  acts.^^^ 

[Sees.  779  and  780,  as  originally  enacted, ^"^  were  repealed  b}^  act  of  March 
24,  1874,  and  the  following  new  sections  substituted  in  their  place:] 

779.  Advertising  for  j^roposals. 

Sec  779.  Before  entering  into  said  contract,  it  shall  be  the  duty  of  the  secre- 
tary of  state  to  advertise  for  proposals  for  the  publication  of  said  repoi^ts,  for 
thirty  days,  in  one  daily  paper  in  Sacramento,  and  one  daily  paper  in  San 
Francisco.  It  shall  be  the  duty  of  said  reporter,  secretary  of  state,  and  attor- 
ney-general, to  consider  all  proposals  for  the  publication  of  said  reports  which 
may  be  made  to  them,  and  to  award  the  contract  to  the  person  or  persons  who 
ma}^  agree  to  publish  and  sell  the  same  on  the  terms  most  advantageous  to  the 
state  and  public.  [New  (substituted)  section,  app)roved  March  24,  1874;  Amend- 
ments 1873-4,  69;  took  effect  from  jpassage;  repealed  conflicting  acts. 

780.  Contract,  ivhat  to  require. 

Sec  780.  The  contract  must  require  the  publisher  to  print  and  publish  each 
volume  in  the  style  required  by  section  seven  hundred  and  seventy-seven, 
within  sixty  days  from  the  time  at  which  the  manuscrijDt  is  delivered  by  the 
repoiier,  to  sell  three  hundred  copies  to  the  state  at  the  j^rice  fixed  in  the  con- 
tract, and  to  keep  on  hand  and  for  sale,  at  the  price  stipulated  in  the  contract, 
a  sufficient  number  of  copies  of  each  volume  to  supply  all  demands  for  six 
years  from  the  publication  thereof,  and  to  give  bonds  for  the  fulfillment  of  the 
terms  of  the  contract,  in  the  sum  of  ten  thousand  dollars.  [New  (substitided) 
section,  approved  March  24,  1873-4;  Amendments  1873-4,69;  took  effect  from 
passage;  repealed  conflicting  acts. 

781.  Secretary  of  state  to  purchase  volumes  for  use  of  state. 

Sec  781.  On  the  publication  of  each  volume  of  reports,  the  secretary  of  state 
must  purchase,  for  the  use  of  the  state,  three  hundred  copies  of  said  volume  at 

(a)   Original  Bection:  paper,  in  long  primer  leaded,  except  the  title-page,  the 

S>;c.  777.   The  reports  must  be   published  in  well-  table  of  cases,  the  synopsis,  and  index.     The  reporter 

bound  volumes,  and  must  be  printed  on  good  book  must  copyright  each  volume  of  the  reports  in  his  own 

paper,  iu  long  primer  leaded,  except  the  title-page,  the  name;  but  such  coijyright  shall  be  the  propez-ty  of  the 

taVjle  of  cases,  the  syTioi)sis,  and  index.  state. 

Tlie  section  was  amended  by  act  of  March  30,  1874  (h)  Original  section: 

(.\m(ndments  lH7:i-l,  12)  so  as  to  read  as  below;  but  Sec.  778.   An  edition  of  twelve  hundred  copies  of 

by  ojieration  of  section  117  of  the  amendatory  act  of  each  volume  must  be  jiublished. 

March  :iO.  1H74  (se<'  Amendments  187:}-4,  (30;  post  44.57)  (c)   Original  sections: 

the  amendment  of  March  24,  lh74  (given  in  the  text)  Sec.  77'.».  The  printing  and  binding  must  be  done  by 

sup'-rsedcd  botli  the  original  section  and  the  following  the  state  printer, 

amendment  of  March  :iO,  1874:  Skc.  780.  The  reporter  must,  as  soon  as  it  is  piib- 

Sk.c.  777.   The  reports  jnufX  be  published  In  well-  lished,  deliver  to  the  secretary  of  state  the  whole  of 

bound  volumes,  and  must  be  i)rinted  on  good  book  the  edition. 

166 


PUBLIC  OFFICERS. 


781-791 


the  piice  named  in  the  contract,  not  exceeding  four  dollars  per  volume,  and 
after  having  distributed  the  same,  as  required  by  section  four  hundred  and  ten, 
shall  deposit  the  surplus  copies,  if  any  there  be,  in  the  state  library.  [Amend- 
ment, approved  March  24,  1874;  Amendments  1873-4,  70;  took  effect  from  ptcii^^cige  ; 
repealed  covjlicting  acta}"'' 

782.  Duty  of  secretary  of  state,  when  the  proposals  are  received. 

Sec.  782.  If,  after  advertising  as  required  by  section  seven  hundred  and 
seventy-nine,  no  proposals  are  received  by  the  secretary  of  state  agreeing  to 
print,  publish,  and  sell  said  volumes  at  a  price  not  exceeding  four  dollars  per 
volume,  then  the  state  printer  must  print  and  bind  twelve  hundred  copies  of 
each  volume,  and  deliver  to  the  secretary  of  state  all  the  copies  printed  by  him; 
and  the  secretary  of  state  must  keep  the  copies  of  the  edition  not  distrilmted 
under  the  provisions  of  section  four  hundred  and  ten  on  sale  at  four  dollars  per 
volume,  at  retail,  and  at  such  wholesale  price  as  may  be  fixed  by  the  governor, 
controller,  and  secretary  of  state,  and  must,  at  the  end  of  each  month,  pay  into 
the  state  treasury  the  proceeds  of  all  sales  made  by  him.  This  act  shall  not 
apjily  to  any  volume  of  reports,  the  j^rinting  of  which  may  have  been  com- 
menced by  the  state  printer  at  the  time  the  contract  herein  provided  for  is 
made.  [New  section,  approved  March  24,  1874;  Amendments  1873-4,  70;  took 
effect  from  passage ;  rejjealed  conflicting  acts. 


ARTICLE  III. 

NOTARIES    PUBLIC. 

791.  Number  of  notaries. 

Sec.  791.  The  governor  must  appoint  and  commission  notaries  public  as 
follows : 

For  the  county  of  San  Francisco,  twenty-two; 

For  the  counties  of  Alameda,  Sacramento,  San  Joaquin,  Santa  Clara,  Amador, 
Butte,  Calaveras,  Contra  Costa,  El  Dorado,  Los  Angeles,  Monterey,  Nevada, 
Placer,  Santa  Cruz,  Solano,  Sonoma,  Tuolumne,  Yolo,  and  Yuba,  twenty  each; 
for  each  of  the  other  counties,  fifteen.  [Amendment,  approved  March  30,  1874; 
Amendments  1873-4,  13;  took  effect  July  6,  1874.^^^ 

Additional  notaries  in  Fresno,  Tulare  and  Humboldt  counties. 
An  Act  to  provide  for  the  appointment  of  additional  notaries  public  in  the  counties  of 

Fresno,  Tulare  and  Humboldt. 

Approved  January  9,  1874;  1873-4,  20. 

Section  1.  The  governor  shall  have  the  power  and  is  hereby  authorized  to 


(a)  Original  Bection: 

Sec.  781.  The  secretary  of  state  must  keep  on  sale, 
at  four  dollars  jjer  volume,  the  copies  of  the  edition 
not  distributed  under  the  provisions  of  section  410, 
and  must,  at  the  end  of  each  month,  pay  into  the 
state  treasury  the  proceeds  of  all  sales  made  by  him. 

The  section  was  amended  by  act  of  March  30,  1874 
(Amendments  1873^,  13),  so  as  to  read  like  the  origi- 
nal section  with  the  exception  of  the  words  "  three 
dollars"  instead  of  "  four  dollars:"  but  by  operation  of 
section  117  of  the  amendatory  act  of  March  30,  1874 
(see  Amendments  1873-4,  60;  post  4457),  the  amend- 
ment of  March  24,  1874  (given  in  the  text)  superseded 
both  the  original  section  and  the  amendment  of  March 
30,  1874. 

(6)  Original  section: 

Sec.  791.  The  governor  of  the  state  must  ajopoint  and 
commission  notaries  public  as  follows:  For  the  coun- 
ties of  Alameda  and  Sacramento,  twelve  each;  for  the 
counties  of  Amador,  Contra  Costa,  Mariposa,  Mon- 
terey, Napa,  San  Diego,  and  Stanislaus,  eight  each; 
for  the  counties  of  Alpine,  Colusa,  Del  Norte,  Fresno, 
Humboldt,  Inyo,  Klamath,  Lake,  Lassen,  Mono,  Plu- 
mas, San  Bernardino,  San  Luis  Obispo,  San  Mateo, 
Santa  Barbara,  Santa  Cruz,  Shasta,  Sutter,  Tehama, 
Trinity,  Tulare,  and  Yolo,  five  each;  for  the  counties 
of  Butte,  Calaveras,  El  Dorado,  Sierra,  and  Tuolumne, 
thirteen  each;  for  the  counties  of  Kern,  Marin,  and 
Merced,  seven  each;  for  the  county  of  Los  Angeles, 
nine— one  to  reside  on  Santa  Catalina  Island ;  for  the 


eounties  of  Mendocino,  Placer,  and  Yuba,  ten  each; 
for  the  county  of  Nevada,  eighteen;  for  the  county  of 
San  Francisco,  twenty-one;  for  the  covmties  of  Sun 
Joaquin  and  Siskiyou,  fifteen  each;  for  the  countj- of 
Santa  Clara,  eight — two  to  reside  in  Santa  Clara  To\vu- 
ship,  and  one  in  Gilroy  Township;  for  the  county  of 
Solano,  nine;  for  the  county  of  Sonoma,  nine— one  to 
reside  in  Healdsburg. 

The  number  of  notaries  piiblic  provided  for  by  the 
original  section  just  given  was  increased  by  special 
acts  in  1872,  as  follows: 


County. 


Butte    

Contra  Costa  . . . 

Humboldt 

Monterey 

Plumas 

Placer 

Sacramento 

San  Diego 

San  Francisco . . 

Sonoma 

Solano 

Ventura 


Two. 

Three. 

Three. 

Two. 

One. 

Two. 

Four. 

Three. 

One. 

One. 

Two. 

Five. 


Date  of  Act. 


-Tan.  26,  1872... 
Feb.  1,  1872  ... 
Feb.  20,  1872  . 
March  30,  1872 
March  8,  1872.. 
Jan.  20,  1872... 
April  1,  1872... 
March  4,  1872., 
March  1,  1872. . 
Feb.  13,1872... 
Jan.  18,  1872... 
March  22,  1872 


1871-2, 
1871-2, 
1871- 
1871-2, 
1871-2, 
1871- 
1871-2, 
18T1-2,  238 
1871-2,  184 
1871-2,  95 
1871-2,  24 
1871-2,  489 


46 
159 
792 
3r4 

;3 

881 


1G7 


791  POLITICAL  CODE. 

appoint  and  commission  four  notaries  public  in  each  of  tlie  counties  of  Fresno, 
Tulare  and  Humboldt,  in  addition  to  the  number  now  authorized  by  law  to  be 
appointed  in  said  counties,  who  shall  hold  their  offices  for  the  pei-iod  of  two 
years  and  until  their  sviccessors  shall  have  been  appointed  and  qualified. 
Sec.  2.  This  act  shall  take  effect  from  and  after  its  passage. 

Additional  notaries  in  Santa  Clara,  Napa,  Santa  Barbara,  San  Luis  Obispo  and 
Sonoma  counties. 
An  Act  to  proYido  for  the  appoiutment  of  additional  notaries  public  in  some  of  the  counties 

of  this  state. 

Approved  January  19, 1874;  1873-4,  30. 

Section  1.  The  governor  is  hereby  authorized  to  appoint  and  commission 
notaries  public  in  the  following  counties,  in  addition  to  those  now  authorized  by 
law :  In  the  county  of  Santa  Clara  eight,  one  of  whom  shall  have  his  place  of  busi- 
ness at  Mayfield,  one  at  San  Felipe,  one  at  Milpitas,  one  at  Saratoga,  and  one  at 
Gilroy  township,  and  one  at  Mountain  View.  In  the  county  of  Napa,  one  to 
reside  at  Yountville.  In  the  counties  of  Santa  Barbara  and  San  Luis  Obispo, 
three  each.    In  the  county  of  Sonoma  two,  one  to  reside  at  Pine  Flat. 

Sec  2.  This  act  shall  take  effect  immediately. 

Notaries  in  San  Benito  county. 

An  Act  to  create  the  county  of  San  Benito,  to  establish  the  boundaries  thereof,  and  to  pro- 
vide for  its  organization. 

Approved  February  12,  1874;  1873-4,  95. 

Sec  14.  San  Benito  county  shall  be  entitled  to  five  notaries  public,  as  i^ro- 
vided  by  law. 

Additional  notaries  in  Stanislaus  county. 
An  Act  to  add  five  notaries  public  in  Stanislaus  county. 

Approved  February  17,  1874;  1873-4,  108. 

Section  1.  That  in  addition  to  the  notaries  public  now  provided  for  by  law, 
the  governor  shall  appoint  five  additional  notaries  public  for  the  county  of 
Stanislaus. 

Sec  2.  This  act  shall  take  effect  from  and  after  its  passage. 

Notaries  in  Modoc  county. 
An  Act  to  create  the  county  of  Modoc,  to  establish  the  boundaries  thereof,  and  to  jn-ovide 

for  its  organization. 

Approved  February  17,  1874;  1873-4,  124. 

Sec  15.  Modoc  county  shall  be  entitled  to  five  notaries  public,  as  provided 
by  law. 

Additional  notary  in  San  Francisco  city  and  county. 

An  Act  to  provide  for  the  appointment  of  an  additional  notary  pulilic  for  the  city  and  county 

of  San  Francisco,  for  the  accommodation  of  the  inhabitants  of  said  city  and  county  residing 

south  of  Market  street. 

Approved  February  20,  1874;  1873-4,  139. 

Section  1.  The  governor  is  authorized  to  appoint  and  commission  one  addi- 
tional notaiy  public  for  the  city  and  county  of  San  Francisco,  who,  when  duly 
qualified  under  and  according  to  the  laws  of  the  state  governing  notaries  public, 
shall  be  invested  with  all  the  official  powers  and  qualifications,  and  subject  to 
all  the  duties  and  liabilities  of  other  notaries  public  lawfully  appointed,  com- 
missioned and  qualilied  for  said  city  and  county. 

Sec  2.  Said  notary  public  shall  keep  an  office  for  the  transaction  of  business 
in  that  portion  of  the  city  and  county  of  San  Francisco  south  of  Market  street. 

Sec  3.  This  act  shall  take  effect  and  be  in  force  from  and  after  its  passage. 

168 


PUBLIC  OFFICEKS.  791-795 

Additional  notary  for  Los  Angeles  county. 

Au  Act  to  provide  for  the  appointment  of  an  additional  notary  public  for  the  county  of  Los 

Anceles. 

Approved  March  10, 1874;  1873-4,  327. 

Section  1.  For  the  county  of  Los  Angeles,  an  additional  notary  public  shall 
be  aj)pointed  by  the  governor,  to  reside  at  Anaheim,  who  shall  hold  office  for 
the  term  of  two  years,  and  until  his  successor  is  aj)pointed  and  qualified. 

Sec.  2.  This  act  shall  take  efl'ect  and  be  in  force  on  and  after  its  passage. 

Additional  notaries  in  Inyo  county. 
An  Act  to  provide  additional  notaries  public  in  the  county  of  Inyo. 
Approved  March  24,  1874;  1873-4,  574. 

Section  1.  The  governor  is  hereby  authorized  to  appoint  two  additional  nota- 
ries public  in  and  for  the  county  of  Inyo;  and  said  notaries,  when  appointed, 
shall  hold  office  under  and  by  virtue  of  all  the  laws  now  or  hereafter  jDertaining 
to  said  officers. 

Sec.  2.  This  act  shall  take  effect  from  and  after  its  passage. 

792.  Best7'ictions  as  to  residence. 

Sec.  792.  Every  person  appointed  as  notary  public  must  at  the  time  of  his 
appointment  be  an  elector  of  the  county  for  which  he  is  appointed,  and  must 
continue  to  reside  in  such  county. 

793.  Ter7n  of  office. 

Sec.  793.  The  tenn  of  office  of  a  notary  public  is  two  years  from  and  after 
the  date  of  his  commission. 

794.  General  duties  of. 

Sec.  794.  It  is  the  duty  of  notaries  public : 

1.  When  requested,  to  demand  accej^tance  and  payment  of  foreign,  domestic, 
and  inland  bills  of  exchange,  or  promissory  notes,  and  protest  the  same  for 
non-accei)tance  and  non-payment,  and  to  exercise  such  other  powers  and  duties 
as  by  the  law  of  nations  and  according  to  commercial  usages,  or  by  the  laws  of 
any  other  state,  government,  or  country,  may  be  performed  by  notaries; 

2.  To  take  the  acknowledgment  or  proof  of  powers  of  attorney,  mortgages, 
deeds,  grants,  transfers,  and  other  instruments  of  writing  executed  by  any  per- 
son, and  to  give  a  certificate  of  such  proof  or  acknowledgment,  indorsed  on  or 
attached  to  the  instrument; 

3.  To  take  depositions  and  affidavits,  and  administer  oaths  and  affirmations, 
in  all  matters  incident  to  the  duties  of  the  office,  or  to  be  used  before  any  court, 
judge,  officer,  or  board  in  this  state; 

4.  To  keejD  a  record  of  all  official  acts  done  by  them; 

5.  To  keep  a  record  of  the  parties  to,  date,  and  character  of  every  instrument 
acknowledged  or  proved  before  them; 

6.  "When  requested,  and  upon  payment  of  their  fees  therefor,  to  make  and 
give  a  certified  copy  of  any  record  in  their  office ; 

7.  To  provide  and  keep  official  seals,  upon  which  must  be  engraved  the  arms 
of  this  state,  the  words  "  notary  public,"  and  the  name  of  the  county  for  which 
they  are  commissioned; 

8.  To  authenticate  with  their  official  seals  all  official  acts. 

795.  Protest  prima  facie  evidence  of  facts  stated. 

Sec.  795.  The  protest  of  a  notary,  under  his  hand  and  official  seal,  of  a  bill  of 
exchange,  or  promissory  note,  for  non-acceptance,  or  non-payment,  stating  the 
presentment  for  acceptance  or  j^ayment,  and  the  non-accei)tance  or  non-jDay- 
meut  thereof,  the  service  of  notice  on  any  or  all  of  the  parties  to  such  bill  of 

169 


795-811  POLITICAL  CODE. 

excliang-e  or  promissory  note,  and  specif3'ing  tlie  mode  of  giving  sucli  notice, 
and  the  reputed  place  of  residence  of  the  party  to  such  bill  of  exchange  or 
promissory  note  and  of  the  party  to  whom  the  same  was  given,  and  the  post- 
office  nearest  thereto,  is  prima  facie  evidence  of  the  facts  contained  therein. 
[Amendment,  approved  March  30,  1874;  Amendments  1873—4,  13;  took  effect  July 
6,  1874.(''> 

796.  Ficcords  of,  on  death  or  resignation. 

Sec.  796.  If  any  notary  die,  resign,  is  disqualified,  removed  from  office,  or 
removes  from  the  county  for  which  he  is  appointed,  his  records  and  all  his 
public  papers  must,  within  thirty  days,  be  delivered  to  the  clerk  of  the  county, 
who  must  deliver  them  to  the  notary's  successor,  when  qualified. 

797.  Certified  cojnes  of  records  of  a  jyredecessor. 

Sec.  797.  Every  notary  having  in  his  possession  the  records  and  papers  of 
his  predecessor  in  office,  may  grant  certificates  or  give  certified  copies  of  such 
records  and  papers,  in  like  manner  and  with  the  same  effect  as  such  predecessor 
could  have  done. 

798.  Fees. 

Sec.  798.  The  fees  of  notaries  are  as  follows:  For  drawing  and  copying  every 
protest  for  the  non-payment  of  a  promissory  note,  or  for  the  non-payment  or 
non-acceptance  of  a  bill  of  exchange,  draft,  or  check,  two  dollars.  For  draw- 
ing and  serving  eveiy  notice  of  non-payment  of  a  promissory  note,  or  of  the 
non-payment  or  non-acceptance  of  a  bill  of  exchange,  order,  draft,  or  check, 
one  dollar.  For  recording  every  protest,  one  dollar.  For  drawing  an  affidavit, 
deposition,  or  other  paper,  for  which  provision  is  not  herein  made,  for  each 
folio,  thirty  cents.  For  taking  an  acknowledgment,  or  proof  of  a  deed,  or 
other  instrument,  to  include  the  seal  and  the  writing  of  the  certificate,  for  the 
first  two  signatures,  one  dollar  each,  and  for  each  additional  signature,  fifty 
cents.  For  administering  an  oath  or  affirmation,  fifty  cents.  For  every  cer- 
tificate, to  include  writing  the  same  and  the  seal,  one  dollar.  [Amendmerif, 
approved  31arch  16,  1874;  Amendments  1873-4,  71;  took  effect  from  passage, '^^^ 

799.  Official  bond. 

Sec  799.  Each  notary  must  execute  an  official  bond  in  the  sum  of  five  thou- 
sand dollars,  which  bond  must  be  apj^roved  by  the  county  judge  of  his  county, 
and  filed  and  recorded  as  other  official  bonds  of  county  officers. 

800.  Certificate  of  filing  bond  and  oath. 

Sec  800.  Each  notary,  as  soon  as  he  has  taken  his  official  oath  and  filed  his 
official  bond,  must  transmit  a  certificate  of  the  facts,  under  the  hand  and  seal 
of  the  county  clerk,  to  the  office  of  the  secretary  of  state. 

801.  Liabilities  on  official  bond. 

Sec.  801.  For  the  official  misconduct  or  neglect  of  a  notary  public,  he  and 
the  sureties  on  his  official  bond  are  liable  to  the  parties  injured  thereby  for  all 
the  damages  sustained. 

ARTICLE  IV. 

COMMISSIONERS    OF    DEEDS. 

811.  Governor  to  appoint. 

Sec.  811.  The  governor  may  appoint  in  each  state  of  the  United  States,  or  in 
any  foreign  state,  one  or  more  commissioners  of  deeds,  to  hold  office  for  the 
term  of  four  years  from  and  after  the  date  of  their  commission. 

(a)  The  original  section  used  the  word  "  iiriumry  "  vided  for,  twenty  centB  for  each  folio  was  allowed,  and 

instead  of  "  prima  facie."  for  an  acknowlcdf^inent  or  proof  of  a  deed  or  other 

(h)  The  original  section  provided  for  only  one  lialf  inKtrumcnt  fifty  cents  for  the  first  signature   indud- 

the  amount  of  fees  allowed  by  the  amcudment,  except  iii'-,'  stal  aud  certificate  and  twenty-five  cents  for  each 

that  for  drawng  papers  not  otherwise  specially  pro-  additional  signature. 

170 


PUBLIC  OFFICERS.  812-831 

812.  General  duties  of. 

Sec.  812.  Every  commissioner  of  deeds  lias  power  within  the  state  for  which 
he  is  ai)j)ointed: 

1.  To  administer  and  certify  oaths; 

2.  To  take  and  certify  depositions  and  affidavits; 

3.  To  take  and  certify  the  acknowledgment  or  proof  of  2)owers  of  attorney, 
mortgages,  transfers,  grants,  deeds,  or  other  instruments  for  record; 

4.  To  provide  and  keep  an  official  seal,  upon  which  must  be  engraved  the 
arms  of  this  state,  the  words  "Commissioner  of  Deeds  for  the  State  of  Cali- 
fornia," and  the  name  of  the  state  for  which  he  is  commissioned; 

5.  To  authenticate,  with  his  official  seal,  all  his  official  acts. 

813.  Effect  of  acts  done  by  commissioners. 

Sec.  813.  All  oaths  administered,  depositions  and  affidavits  taken,  and  all 
acknowledgments  and  proofs  certified  by  commissioners  of  deeds,  have  the  same 
force  and  effect,  to  all  intents  and  jDurposes,  as  if  done  and  certified  in  this 
state  by  any  officer  authorized  by  law  to  perform  such  acts. 

814.  Oath,  ivhen  to  be  fled. 

Sec.  814.  The  official  oaths  of  commissioners  of  deeds  must  be  filed  in  the 
office  of  the  secretary  of  state  within  six  months  aftei>  they  are  taken. 

815.  Fees. 

Sec  815,  The  fees  of  commissioners  of  deeds  are  the  same  as  those  pre- 
scribed for  notaries  public. 

816.  List  of  commissioners  to  be  published. 

Sec.  816.  The  names  of  all  persons  appointed  commissioners  must  be  pub- 
lished three  times  in  some  weekly  newspaper  published  at  the  seat  of  govern- 
ment of  the  state. 

817.  Copy  of  this  article  to  be  transmitted  to  appointee. 

Sec.  817,  The  secretary  of  state  must  transmit,  with  the  commission  to  the 
aj)pointee,  a  certified  copy  of  this  article,  and  of  secbion  798, 

ARTICLE  V. 

OTHER   ornoEKS. 

827.  Court  commissioners. 

Sec  827.  The  mode  of  appointment,  powers,  and  duties  of  court  commis- 
sioners are  fixed  by  Chapter  II,  Title  III,  Part  I  of  The  Code  of  Civn.  Proceduee. 
[See  post,  10,258.] 

828.  Secretary  and  bailiff  of  the  snpreme  court. 

Sec  828.  The  mode  of  appointment,  powers,  and  duties  of  the  secretary  and 
bailiff  of  the  supreme  court  are  fixed  by  Chapter  II,  Title  TV,  Part  I  of  The 
Code  of  Civil  Procedure.     [See  post,  10,265.] 

829.  Phonographic  reporters. 

Sec.  829.  The  mode  of  appointment,  powers,  and  duties  of  phonographic 
reporters  are  fixed  by  Chapter  III,  Title  IV,  Part  I  of  The  Code  of  Civil  Pro- 
cedure, and  sections  769  and  770  of  this  Code.     [See  post,  10,269.] 

830 .  Clerks,  sheriffs,  coroners,  and  other  county  officers,  etc. 

Sec.  830.  The  mode  of  election  of  clerks,  sheriffs,  coroners,  and  other  county 
and  townshij)  officers  is  fixed  by  Part  IV  of  this  Code.     [See  post,  3901.] 

831.  Attorneys  and  counselors  at  law. 

Sec  831.  The  admission  of  attorneys  and  counselors  at  law  is  provided  for 
and  their  duties  fixed  in  Chapter  I,  Title  V,  Part  I  of  The  Code  of  Civil  Pro- 
cedure.    [See  post,  10,275.] 

171 


841-853  POLITICAL  CODE. 

CHAPTER  VII. 

GENERAL  PROVISIONS   RELATING  TO   DIFFERENT   CLASSES   OF   OFFICERS. 

AeTICLE  I.    DlSQUALIPICATIONS 841 

II.  Restrictions  upon  the  Kesidence  of  Officers 852 

III.  Powers  of  Deputies 865 

IV.  Appointment  and  Ddeation  of  Term 875 

V.  Nominations  and  Commissions 889 

VI.  Oath  of  Office 904 

VII.  Prohibitions  Applicable  to  Certain  Officers 920 

VIII.  Salaries,  wuen  Title  is  Contested 936 

IX.  Bonds  of  Officers 947 

X.  Resignations,  Vacancies,  and  the  Mode  of  Supplying  them 995 

XI.  Proceedings  to  Compel  Delivery  of  Books  and  Papers 1014 

XII.  Miscellaneous  Provisions 1026 

ARTICLE  I. 

DISQUALIFICATIONS. 

841.  Age  and  citizenship. 

Sec.  841.  No  person  is  capable  of  holding  a  civil  office  who  at  the  time  of  his 
election  or  appointment  is  not  of  the  age  of  twenty-one  years  and  a  citizen  of 
this  state. 

An  Act  to  make  womeu  eligible  to  educational  offices . 

Approved  March  12,  1874;  1873-4,  356. 

Women  eligible. 

Section  1.  Women,  over  the  age  of  twenty-one  years,  who  are  citizens  of  the 
United  States  and  of  this  state,  shall  be  eligible  to  all  educational  offices  within 
the  state,  except  those  from  which  they  are  excluded  by  the  constitution. 

Sec  2.  All  acts  and  parts  of  acts  in  conflict  with  this  act  are  hereby  repealed. 
This  act  shall  take  effect  from  and  after  its  passage. 

842.  Other  disqualifications. 

Sec  842.  Provisions  respecting  disqualification  for  particular  offices  are 
contained  in  the  constitution  and  in  the  provisions  of  the  codes  concerning  the 
various  offices. 

843.  County  officer  not  to  act  as  deputy  of  another  officer. 

Sec  843,  No  county  officer  must  be  appointed  or  act  as  the  deputy  of  another 
officer  of  the  same  county,  except  in  cases  where  the  joay  of  the  officer  so  ap- 
pointed amounts  to  a  sum  less  than  seventy -five  dollars  per  month.  [Amend- 
ment, approved  March  15,  1876;  Amendments  1875-6,  28;  took  effect  from  passage. '^'^^ 

AETICLE  II. 

KESTEICTIONS    UPON    THE    KESIDENCE    OF    OFFICERS. 

852.  Certain  officers  must  reside  in  Sacramento. 

Sec.  852.  The  following  officers  must  reside  at  and  keep  their  offices  in  the 
city  of  Sacramento:  The  governor;  secretary  of  state;  controller;  treasurer  of 
state;  attorney -general;  suits' eyor-general;  state  printer;  suiDerinteudent  of 
public  instruction;  justices  of  the  supreme  court;  clerk  of  the  supreme  court; 
reporters  of  the  supreme  court;  and  adjutant-general. 

853.  Absence  from  the  stale. 

Sec.  853.  No  officer  mentioned  in  the  preceding  section  must  absent  himself 

(a)  The  original  was  a  new  section  added  hy  act  of  6,1874.  It  did  not  have  the  last  clause  commencing 
March 30, 1874 jAmeudmentB  1873-4, 14;  took  effect  July     with  the  words  "except  in  cases  where." 

172 


PUBLIC  OFFICEES.  853-891 

from  the  state  for  more  tlian  thirty  days,  unless  upon  business  of  the  state  or 
with  the  consent  of  the  legislature. 

854.  Restrictions  upon  judicial  officers. 

Sec.  854.  Restrictions  upon  the  residence  of  other  judicial  officers  are  con- 
tained in  The  Code  or  Civil  Pkoceduke. 

855.  Restrictions  xipon  county  officers. 

Sec.  855.  Restrictions  upon  the  residence  of  county  officers  are  contained  in 
Part  IV  of  this  Code.     [See  post,  4101  and  4119.] 

ARTICLE  III. 

POWERS    OF    DEPUTIES, 

865.  Powers  of  deputies. 

Sec.  865.  In  all  cases  not  otherwise  provided  for,  each  deputy  possesses  the 
powers  and  may  perform  the  duties  attached  by  law  to  the  office  of  his  principal. 

ARTICLE  IV. 

APPOINTMENT   AND   DURATION   OF   TERMS. 

875.  Appointments,  when  not  otherwise  provided  for . 

Sec.  875.  Every  officer,  the  mode  of  whose  appointment  is  not  prescribed  by 
the  constitution  or  statutes,  must  be  appointed  by  the  governor. 

876.  Deputies  and  subordinate  officers. 

Sec.  876.  All  assistants,  deputies  and  other  subordinate  officers,  whose  ap- 
pointments are  not  otherwise  provided  for,  must  be  appointed  by  the  officer  or 
body  to  whom  they  are  respectively  subordinate. 

877.  Number  of  deputies. 

Sec.  877.  When  the  number  of  such  deputies  or  subordinate  officers  is  not 
fixed  by  law,  it  is  limited  only  by  the  discretion  of  the  appointing  power. 

878.  Term  of  office,  when  not  prescribed. 

Sec.  878.  Every  office  of  which  the  duration  is  not  fixed  by  law  is  held  at  the 
pleasure  of  the  appointing  power. 

879.  Holding  over  until  successor  is  qualified. 

Sec.  879.  Every  officer  must  continue  to  discharge  the  duties  of  his  office, 
although  his  term  has  expired,  until  his  successor  has  qualified. 

ARTICLE  V. 

NOMINATIONS   AND   COMMISSIONS   OF   OFFICERS. 

889.  Nominations  to  senate  must  be  in  writing. 

Sec.  889.  Nominations  made  by  the  governor  to  the  senate  must  be  in  writing, 
designating  the  residence  of  the  nominee  and  the  office  for  which  he  is  nom- 
inated. 

890.  Resolution  of  concurrence. 

Sec.  890.  Whenever  the  senate  concurs  in  a  nomination,  its  secretary  must 
immediately  deliver  a  copy  of  the  resolution  of  concurrence,  certified  by  the 
president  and  secretary,  to  the  secretary  of  state,  and  another  copy,  certified  by 
the  secretary,  to  the  governor. 

891.  Commissions  by  the  governor. 

Sec.  891.  The  governor  must  commissions 

1.  All  officers  elected  by  the  people  whose  commissions  are  not  otherwise 
provided  for; 

173 


891-909  POLITICAL  CODE. 

2.  All  officers  elected  b}-  the  legislature; 

3.  All  officers  of  the  militia; 

4.  All  officers  appointed  by  the  governor,  or  by  the  governor  -uith  the  advice 
and  consent  of  the  senate; 

5.  United  States  senators. 

892.  Form  of  commissions. 

Sec.  892.  The  commissions  of  all  officers  commissioned  by  the  governor  must 
be  issued  in  the  name  of  the  people  of  this  state,  and  must  be  signed  by  the 
governor  and  attested  by  the  secretary  of  state,  under  the  great  seal. 

893.  Other  commissions. 

Sec.  893.  The  commissions  of  all  other  officers,  where  no  special  provision  is 
made  by  law,  must  be  signed  by  the  j^residing  officer  of  the  body  or  by  the 
person  making  the  appointment. 

894.  Appointment  of  deputies,  etc.,  hoiv  made. 

Sec.  894.  The  appointment  of  deputies,  clerks,  and  subordinate  officers, 
when  not  otherwise  provided  for,  must  be  made  in  writing,  filed  in  the  office 
of  the  appointing  power  or  the  office  of  its  clerk. 

AKTICLE  VI. 

OATH    OF    OFFICE. 

904.  Oath,  form  of. 

Sec  904.  Before  any  officer  enters  on  the  dvities  of  his  office,  he  must  take 
and  subscribe  the  following  oath: 

"  I  do  swear  [or  affirm]  that  I  will  support  the  constitution  of  the  United 
States  and  the  constitution  of  the  State  of  California,  and  that  I  will  faithfully 
discharge  the  duties  of  the  office  of according  to  the  best  of  my  ability." 

905.  Oath  of  governor  and  lieutenant-governor. 

Sec.  905.  The  governor  and  lieutenant-governor  must  take  the  official  oath  in 
the  presence  of  both  houses  of  the  legislature,  in  convention  assembled,  and  an 
entry  of  the  fact  must  be  made  upon  the  joiirnals  of  each  house. 

906.  Oath  of  members  of  the  legislature. 

Sec  906.  Members  of  the  legislature  may  take  the  oath  of  office  at  any  time 
during  the  terra  for  which  they  were  elected. 

907.  Oath,  when  taken. 

Sec  907.  Whenever  a  different  time  is  not  prescribed  by  law,  the  oath  of  office 
must  be  taken,  subscribed  and  filed  within  ten  days  after  the  officer  has  notice 
of  his  election  or  appointment,  or  before  the  expiration  of  fifteen  days  from  the 
commencement  of  his  term  of  office,  when  no  such  notice  has  been  given. 

908.  Oath,  before  ivhom  taken. 

Sec.  908.  Except  when  otherwise  provided,  the  oath  may  be  taken  before  any 
officer  authorized  to  administer  oaths. 

909.  Oath,  where  fled. 

Sec  909.  Every  oath  of  office,  certified  by  the  officer  before  whom  the  same 
was  taken,  must  be  filed  within  the  time  required  by  law,  except  when  other- 
wise specially  directed,  as  follows: 

1.  The  oath  of  all  officers  whose  authority  is  not  limited  to  any  particular 
county,  in  the  office  of  the  secretary  of  state. 

2.  The  oath  of  all  officers  elected  or  appointed  for  any  county,  and  of  all 
officers  whose  duties  are  local,  or  whose  residence  in  any  j^articular  county  is 
prescribed  by  law,  in  the  offices  of  the  clerks  of  their  respective  counties. 

174 


PUBLIC  OFFICEKS.  910-926 

910.   Oath  of  deputies,  etc. 

Sec.  910.  Deputies,  clerks,  and  subordinate  officers  must,  within  ten  days 
after  receiving  notice  of  their  appointment,  take  and  file  an  oath  in  the  manner 
required  of  their  principals. 

ARTICLE  VII. 

PEOHIBITIONS    APPLICABLE    TO    CERTAIN    OFFICERS. 

920.  Certain  officers  not  to  he  interested  in  contracts. 

Sec  920.  Members  of  the  legislature,  state,  county,  city,  and  township 
officers,  must  not  be  interested  in  any  contract  made  by  them  in  their  official 
capacity,  or  by  any  body  or  board  of  which  they  are  members, 

921.  Nor  2Mrchasers  or  vendors  at  certain  sales. 

Sec.  921.  State,  county,  township  and  city  officers  must  not  be  purchasers  at 
any  sale  nor  vendors  at  any  purchase  made  by  them  in  their  official  capacity. 

922.  Contracts  in  violation,  voidable. 

Sec  922.  Every  contract  made  in  violation  of  any  of  the  provisions  of  the 
two  preceding  sections  may  be  avoided  at  the  instance  of  any  party  except  the 
officer  interested  therein. 

923.  Certain  officers  prohibited  from  dealing  in  scrip,  etc. 

Sec  923.  The  state  treasurer  and  controller,  the  several  county,  city,  or  town 
officers  of  this  state,  their  deputies  and  clerks,  are  prohibited  from  purchasing 
or  selling,  or  in  any  manner  receiving  to  their  own  use  or  benefit,  or  to  the  use 
or  benefit  of  any  person  or  persons  whatever,  any  state,  county  or  city  warrants, 
scrip,  orders,  demands,  claims,  or  other  evidences  of  indebtedness  against  the 
state,  or  any  county  or  city  thereof,  except  evidences  of  indebtedness  issued 
to  or  held  by  them  for  services  rendered  as  such  officer,  deputy,  or  clerk,  and 
evidences  of  the  funded  indebtedness  of  such  state,  city,  town,  or  corporation. 

924.  Auditing  officers,  duties  of. 

Sec.  924.  Every  officer  whose  duty  it  is  to  audit  and  allow  the  accounts  of 
other  state,  county,  city  or  town  officers  must,  before  allowing  such  accounts, 
require  each  of  such  officers  to  make  and  file  with  him  an  affidavit  that  he  has 
not  violated  any  of  the  provisions  of  this  article. 

:  925.  Treasurer,  duties  of. " 

Sec  925.  Officers  charged  with  the  disbursement  of  public  moneys  must  not 
pay  any  warrant  or  other  evidence  of  indebtedness  against  the  state,  county, 
city,  or  town,  when  the  same  has  been  purchased,  sold,  received,  or  transferred 
contrary  to  any  of  the  provisions  of  this  article . 

926.   When  settlements  must  be  withheld.  ' 

Sec  926.  Every  officer  charged  with  the  disbursement  of  public  money's, 
who  is  informed  by  affidavit  that  any  officer  whose  account  is  about  to  be 
settled,  audited,  or  paid  by  him,  has  violated  any  of  the  provisions  of  this 
article,  must  suspend  such  settlement  or  payment,  and  cause  such  officer  to  be 
prosecuted  for  such  violation,  by  the  district  attorney  of  the  county.  In  case 
there  be  judgment  for  the  defendant  upon  such  prosecution,  the  resjiective 
officer  may  proceed  to  settle,  audit  or  pay  such  account  as  if  no  such  affidavit 
had  been  filed.  [Amendment,  approved  llarch  30,  1874;  Amendments  1873-4, 
14;  took  effect  July  6,  1874.^^' 

(a)  The  original  section  did  not  have  any  of  the  words  of  the  above  amendment  after  the  words  "for  such 
(Violation." 

175 


93G-955  POLITICAL  CODE. 

AETICLE  VIII. 

SALARIES    OF    OFFICERS    WHEN    TITLE    IS    CONTESTED. 

936.   Title  contested,  salary  must  not  he  paid. 

Sec.  936.  When  the  title  of  the  incumbent  of  an}'  office  in  this  state  is  cou- 
tested  by  proceedings  instituted  in  any  court  for  that  purpose,  no  warrant  can 
thereafter  be  drawn  or  paid  for  any  part  of  his  sahiry  until  such  proceedings 
have  been  finally  determined. 
837.  Pendency  of  suit  must  be  certified  by  the  cleric. 

Sec.  937.  As  soon  as  such  proceedings  are  instituted,  the  clerk  of  the  court 
in  which  they  are  pending  must  certify  the  facts  to  the  officers  whose  duty  it 
would  otherwise  be  to  draw  such  warrant  or  pay  such  salary. 

AETICLE  IX. 

BONDS    OF    OFFICERS. 

947.  Time  for  filing  bond. 

Sec  947.  Every  official  bond  must  be  filed  in  the  proper  office  within  the  time 
prescribed  for  filing  the  oath,  unless  otherwise  expressly  provided  by  statute. 

948.  Approval,  filing  and  recording  bonds  of  state  officers. 

Sec  948.  Unless  otherwise  prescribed  by  statute,  the  official  bonds  of  state 
officers  must  be  approved  by  the  governor,  and  filed  and  recorded  in  the  office 
of  the  secretary  of  state. 

949.  Bond  of  secretary  of  state,  where  filed. 

Sec  949.  The  official  bond  of  the  secretary  of  state  must,  after  it  is  recorded, 
be  filed  in  the  office  of  the  treasurer  of  state. 

950.  Bonds  of  county  and  township  officers,  approval,  filing  and  recording. 

Sec  950.  Unless  otherwise  prescribed  by  statute,  the  official  bonds  of  county 
and  toAvnship  officers  must  be  approved  by  the  county  judge,  recorded  in  the 
office  of  the  county  recorder,  and  then  filed  in  the  county  clerk's  office. 

951.  Eecord  of  official  bond. 

Sec  951.  Official  bonds  must  be  recorded  in  a  book  kept  for  that  purpose, 
and  entitled  "  Record  of  Official  Bonds." 

952.  Approval  must  be  indorsed  on  bond. 

Sec  952.  The  approval  of  every  official  bond  must  be  indorsed  thereon  and 
signed  by  the  officer  approving  the  same. 

953.  Bond  not  to  be  filed  before  ajyproval. 

Sec  953.  No  officer  with  whom  any  official  bond  is  required  to  be  filed  must 
file  such  bond  until  approved. 

954.  Condition  of  bond. 

Sec  954.  The  condition  of  an  official  bond  must  be  that  the  principal  will 
well,  truly  and  faithfully  perform  all  official  duties  then  required  of  him  by  law, 
and  also  all  such  additional  duties  as  may  be  imposed  on  him  by  any  law  of  the 
State  of  California.  Such  bond  must  be  signed  by  the  principal  and  at  least  two 
sureties. 

955.  Justification  of  sureties. 

Sec  955.  The  officer  whose  duty  it  is  to  approve  official  bonds  required  of 
state,  county,  or  tow^nship  officers,  must  not  accept  or  approve  any  such  bond, 
unless  each  of  the  sureties  severally  justify  before  an  officer  authorized  to 
administer  oaths,  as  follows:  First.  On  a  bond  given  by  a  state  officer,  that 
such  surety  is  a  resident  and  freeholder  or  householder  within  this  state;  and 
on  a  bond  given  by  a  county  or  township  officer,  that  such  surety  is  a  resident 

17G 


PUBLIC  OFFICERS.  955-9G2 

and  freeholder  or  householder  within  such  county,  or  ^vithin  an  adjoining 
county.  Second.  That  such  surety  is  Avorth  the  amount  for  \\hieh  he  becomes 
surety,  over  and  above  all  his  debts  and  liabilities,  in  unincumbered  property, 
situated  within  this  state,  exclusive  of  property  exempt  from  execution  and 
forced  sale.  Third.  A  member  of  the  board  of  supervisors  shall  not  be  accepted 
as  surety  upon  the  official  bond  of  any  county  or  townshiji  officer  of  his  county; 
nor  shall  the  sheriff,  clerk,  tax  collector,  treasurer,  recorder,  auditor,  assessor, 
or  district  attorney  of  the  same  county  become  sureties  upon  official  bonds  for 
each  other.  [Amendment,  approved  March  30,  1874;  Amendments  1873-4,  72; 
took  effect  sixtieth  day  after  passage}"'' 

956.  Sureties  for  less  than  the  penal  sum. 

Sec.  956.  When  the  penal  sum  of  any  bond  required  to  be  given  amounts  to 
more  than  one  thousand  dollars,  the  sureties  may  become  severally  liable  for 
portions  of  not  less  than  five  hundred  dollars  thereof,  making  in  the  aggregate 
at  least  two  sureties  for  the  whole  penal  siim.  And  if  any  such  bond  becomes 
forfeited,  an  action  may  be  brought  thereon  against  all  or  any  number  of  the 
obligors,  and  judgment  entered  against  them,  either  jointly  or  severally,  as  they 
may  be  liable.  The  judgment  must  not  be  entered  against  a  surety  severally 
bound  for  a  greater  sum  than  that  for  which  he  is  sjDecifically  liable  by  the 
terms  of  the  bond.  Each  surety  is  liable  to  contribution  to  his  co-sureties  in 
propoi'tion  to  the  amount  for  which  he  is  liable. 

957.  Custody  of  official  bonds. 

Sec.  957.  Every  officer  with  whom  official  bonds  are  filed  must  carefully  keep 
and  preserve  the  same,  and  give  certified  copies  thereof  to  any  person  demand- 
ing the  same,  upon  being  paid  the  same  fees  as  are  allowed  by  law  for  certified 
coj)ies  of  2)apers  in  other  cases. 

958.  Foim  of  bonds. 

Sec.  958.  All  official  bonds  must  be  in  form  joint  and  several,  and  made  pay- 
able to  the  State  of  California  in  such  j^enalty  and  with  such  conditions  as 
required  by  this  chapter,  or  the  law  creating  or  regulating  the  duties  of  the 
office, 

959.  Construction  of  bonds. 

Sec  959.  Every  official  bond  executed  by  any  officer  pursuant  to  law  is  in 
force  and  obligatory  uj^on  the  principal  and  sureties  therein  for  any  and  all 
breaches  of  the  conditions  thereof  committed  during  the  time  such  officer 
continues  to  discharge  any  of  the  duties  of  or  hold  the  office,  and  whether  such 
breaches  are  committed  or  suffered  by  the  principal  officer,  his  deputy,  or  clerk. 

960.  Obligation  as  to  duties  required  by  new  acts. 

Sec.  960.  Every  such  bond  is  in  force  and  obligatory  upon  the  principal  and 
sureties  therein  for  the  faithful  discharge  of  all  duties  which  may  be  required 
of  such  officer  by  any  law  enacted  subsequently  to  the  execution  of  such  bond, 
and  such  condition  must  be  expressed  therein. 

961.  Suit  on  bonds. 

Sec.  961.  Every  official  bond  executed  by  any  officer  pursuant  to  law  is  in 
force  and  obligatory  upon  the  principal  and  sureties  therein  to  and  for  the  State 
of  California,  and  to  and  for  the  use  and  benefit  of  all  persons  who  may  be 
injured  or  aggrieved  by  the  wrongful  act  or  default  of  such  officer  in  his  official 
capacity;  and  any  person  so  injured  or  aggrieved  may  bring  suit  on  such  bond, 
in  his  own  name,  without  an  assignment  thereof. 

962.  Subsequent  suits. 

Sec  962.  No  such  bond  is  void  on  the  first  recovery  of  a  judgment  thereon; 

(o)  Tlie  original  section  did  not  contain  the  third  subdivision. 

12  177 


962-968  POLITICAL  CODE. 

but  suit  may  be  afterwards  brought,  from  time  to  time,  and  judgment  recov- 
ered thereon  by  the  State  of  California,  or  by  any  person  to  whom  a  right  of 
action  has  accrued  against  such  officer  and  his  sureties,  until  the  whole  penalty 
of  the  bond  is  exhausted. 

963.  Defects  in  form,  approval,  filing,  etc.,  not  to  vitiate. 

Sec.  963.  ^'henever  an  official  bond  does  not  contain  the  substantial  matter 
or  conditions  required  by  law,  or  there  are  any  defects  in  the  approval  or  filing 
thereof,  it  is  not  void  so  as  to  discharge  such  officer  and  his  sureties;  but  they 
are  equitably  bound  to  the  state  or  party  interested;  and  the  state  or  such  party 
may,  by  action  in  any  court  of  competent  jurisdiction,  suggest  the  defect  in 
the  bond,  approval,  or  filing,  and  recover  the  projier  and  equitable  demand  or 
damages  from  such  officer  and  the  persons  who  intended  to  become  and  were 
included  as  sureties  in  such  bond. 

964.  Insufficiency  of  sureties. 

Sec  964.  Whenever  it  is  shown  by  the  affidavit  of  a  credible  witness,  or 
otherwise  comes  to  the  knowledge  of  the  judge,  court,  board,  officer,  or  other 
person  whose  dut}'  it  is  to  approve  the  official  bond  of  any  officer,  that  the 
sureties  or  any  one  of  them  have,  since  such  bond  was  approved,  died,  removed 
from  the  state,  become  insolvent,  or  from  any  other  cause  have  become  incom- 
petent or  insufficient  sureties  on  such  bond,  the  judge,  court,  board,  officer,  or 
other  person  may  issue  a  citation  to  such  officer,  requiring  him,  on  a  day  therein 
named,  not  less  than  three  nor  more  than  ten  days  after  date,  to  appear  and 
show  cause  why  such  office  should  not  be  vacated,  which  citation  must  be 
served  and  return  thereof  made  as  in  other  cases.  If  the  officer  fails  to  appear 
and  show  good  cause  why  such  office  should  not  be  vacated,  on  the  day  named, 
or  fails  to  give  ample  additional  security,  the  judge,  court,  board,  officer,  or 
other  person  must  make  an  order  vacating  the  office,  and  the  same  must  be 
filled  as  provided  by  law. 

965.  Form  of  additional  bond. 

Sec.  965.  The  additional  bond  must  be  in  such  j^enalty  as  directed  by  the 
court,  judge,  board,  officer,  or  other  person,  and  in  all  other  respects  similar 
to  the  original  bond,  and  approved  by  and  filed  with  the  same  officer  as  required 
in  case  of  the  approval  and  filing  of  the  original  bond.  Every  such  additional 
bond  so  filed  and  approved  is  of  like  force  and  obligation  uj^on  the  principal 
and  sureties  therein,  from  the  time  of  its  execution,  and  subjects  the  officer  and 
his  sureties  to  the  same  liabilities,  suits  and  actions  as  are  prescribed  respectiug 
the  original  bonds  of  officers. 

966.  Force  of  orvjinal  bond. 

Sec  966.  In  no  case  is  the  original  bond  discharged  or  affected  when  an 
additional  bond  has  been  given,  but  the  same  remains  of  like  force  and  obliga- 
tion as  if  such  additional  bond  had  not  been  given. 

967.  Liability  of  officers  and  sureties. 

Sec.  967.  The  officer  and  his  sureties  are  liable  to  any  party  injured  by  the 
breach  of  any  condition  of  an  official  bond,  after  the  execution  of  the  addi- 
tional bond,  upon  either  or  both  bonds,  and  such  party  may  bring  his  action 
upon  either  bond,  or  he  may  bring  separate  actions  on  the  bonds  resj^ectively, 
and  he  may  allege  the  same  cause  of  action,  and  recover  judgment  therefor  in 
each  suit. 

968.  Separate  judgments  on  Jxjnds. 

Sec.  968.  If  separate  judgments  are  recovered  on  the  bonds  by  such  party 
for  the  same  cause  of  action,  he  is  entitled  to  have  execution  issued  on  such 
judgments  respectively;  but  he  must  oidy  collect,  by  execution  or  otherwise, 

178 


PUBLIC  OFFICEKS.  968-976 

the  amount  actually  adjudged  to  him  on  the  same  causes  of  action  in  one  of 
the  suits,  together  with  the  costs  of  both  suits. 

969.  ContrihuHon  behceen  sureties. 

Sec.  969.  Whenever  the  sureties  on  either  bond  have  been  compelled  to  pay- 
any  sum  of  money  on  account  of  the  prinei})al  obligor  therein,  tliey  are  entitled 
to  recover  in  any  court  of  competent  jurisdiction  of  the  sureties  on  the  remain- 
ing bond  a  distributive  part  of  the  sum  thus  paid,  in  the  proportion  which  the 
penalties  of  such  bonds  bear  one  to  the  other  and  to  the  sums  thus  paid, 
res2:)ectively. 

970.  Discharge  of  sureties. 

Sec  970.  Whenever  any  sureties  on  the  official  bond  of  any  officer  wish  to 
be  discharged  from  their  liability,  they  and  such  officer  may  procure  the  same 
to  be  done  if  such  officer  will  execute  a  new  bond  with  sufficient  sureties  in  like 
form,  penalty,  and  conditions,  and  to  be  approved  and  filed  as  the  original 
bond.  Uj)on  the  filing  and  approval  of  the  new  bond  such  first  sureties  are 
exonerated  from  all  further  liability;  but  their  bond  remains  in  full  force  as  to 
all  liabilities  incurred  previous  to  the  approval  of  such  new  bond.  The  liability 
of  the  sureties  in  such  new  bond  is  in  all  respects  the  same,  and  may  be  en- 
forced in  like  manner  as  the  liability  of  the  sureties  in  the  original  bond. 

971.  Persons  appointed  to  fill  vacancies,  bonds  of. 

Sec.  971.  Any  person  appointed  to  fill  a  vacancy,  before  entering  upon  the 
duties  of  the  office  must  give  a  bond  corresponding  in  substance  and  form  with 
the  bond  required  of  the  officer  originally  elected  or  appointed,  as  hereinbefore 
Ijrovided. 

972.  Release  of  sureties. 

Sec  972.  Any  surety  on  the  official  bond  of  a  city,  town,  county,  or  state 
officer,  may  be  relieved  from  liabilities  thereon  afterwards  accruing  by  comj^ly- 
ing  with  the  provisions  of  the  three  sections  following. 

973.  Statement  for  release. 

Sec  973.  Such  surety  must  file  with  the  judge,  court,  board,  officer,  or  other 
person  authorized  by  law  to  approve  such  official  bond,  a  statement  in  writing- 
setting  forth  the  desire  of  the  surety  to  be  relieved  from  all  liabilities  thereon 
afterwards  arising,  and  the  reasons  therefor,  which  statement  must  be  sub- 
scribed and  verified  by  the  affidavit  of  the  party  filing  the  same. 

974.  Service. 

Sec  974.  A  copy  of  the  statement  must  be  served  on  the  officer  named  in 
such  official  bond,  and  due  return  or  affidavit  of  service  made  thereon  as  in 
other  cases. 

975.  When  office  may  be  declared  vacant  for  xoant  of  official  bond. 

Sec  975.  In  ten  days  after  the  service  of  such  notice,  the  judge,  court, 
board,  officer,  or  other  person  with  whom  the  same  is  filed,  must  make  an  order 
declaring  such  office  vacant,  and  releasing  such  surety  from  all  liability  there- 
after to  arise  on  such  official  bond,  and  such  office  thereafter  is  in  law  vacant, 
and  must  be  immediately  filled  by  election  or  appointment,  as  jirovided  for  by 
law  as  in  other  cases  of  vacancy  of  such  office,  unless  such  officer  has  before 
that  time  given  good  and  amj)le  surety  for  the  discharge  of  all  his  official  duties 
as  required  originally. 

976.  Supplemental  bond. 

Sec.  976.  Whenever  from  any  cause  a  suretj'  on  the  official  bond  of  any  officer 
elected  or  appointed  under  the  laws  of  this  state  withdraws  from  his  bond  or 
becomes  insolvent,  or  from  other  cause   becomes  incomi^etent  to  remain  as 

179 


97G-983  POLITICAL  CODE. 

surety  thereon,  such  officer  may  file  a  supplemental  bond,  executed  aud 
approved  in  the  same  manner  as  the  original  bond,  for  the  amount  for  which 
the  suret}'  so  withdrawing  or  incompetent  was  bound  by  the  original  bond. 

977.  ED'ect  of  release  on  bond. 

Sec.  977.  The  release,  discharge,  voluntary'  withdrawal,  or  incompetency  of 
a  surety  on  any  official  bond  does  not  affect  the  bond  as  to  the  remaining  sure- 
ties thereon,  or  alter  or  change  their  liability  in  any  respect. 

978.  Supplemental  bond  after  withdrawal. 

Sec.  978.  "Whenever  a  surety  on- any  official  bond  gives  notice  of  intention  to 
withdraw  therefrom,  or  is  removed,  or  becomes  otherwise  incompetent,  the  prin- 
cipal on  the  bond  must,  within  ten  days  after  such  notice  or  disqualification, 
execute  and  file,  subject  to  the  same  conditions  as  the  original,  a  supjjlemental 
bond,  wherein  must  be  recited  the  names  of  the  remaining  original  sureties,  and 
the  name  or  names  of  the  new  surety  or  sureties  and  the  respective  amounts  for 
which  he  or  they  become  bound,  who  are  substituted  in  lieu  of  the  surety  or 
sureties  released  or  disc[ualified. 

979.  When  supplemental  bond  not  required. 

Sec.  979.  Whenever  the  original  bond  is  given  for  an  amount  in  excess  of  the 
sum  required  by  law,  if  the  withdrawal  or  removal  of  any  surety  does  not  I'e- 
duce  the  bond  below  the  amount  required  by  law  to  be  secured  by  sureties,  then 
no  supiDlemental  or  additional  bond  is  rec[uired  or  necessary;  and  whenever  any 
supplemental  bond  is  so  filed  and  approved,  the  officer  with  whom  the  bond  is 
filed,  or  in  whose  office  the  same  is  recorded,  must  give  ten  days'  notice — by 
publication  in  some  paper  published  in  the  county,  or  if  there  is  no  paper  in  the 
county,  then  in  the  county  nearest  thereto  in  which  a  newspaper  is  published, 
and  in  case  of  the  bond  of  a  state  officer,  in  some  paper  at  the  city  of  Sacra- 
mento— of  the  fact  of  the  filing  of  the  bond  and  the  name  of  the  party  with- 
drawing from  the  former  and  the  substitute  on  the  new  bond;  and  until  the 
filing  and  approval  of  the  supplemental  bond  the  sureties  on  the  former  bond 
are  liable  for  all  the  acts  of  their  principal. 

9S0.  Effect  of  discharfje  of  sureties. 

Sec.  980.  No  surety  must  be  released  from  damages  or  liabilities  for  acts,  omis- 
sions, or  causes  existing  or  which  arose  before  the  making  of  the  order  men- 
tioned in  section  975,  but  such  legal  proceedings  may  be  had  therefor  in  all 
respects  as  though  no  such  order  had  been  made. 

981.  Provisions  of  article  apply  to  bonds  of  administrator ,  etc. 

Sec.  981.  The  provisions  of  this  article  apply  to  the  bonds  of  receivers, 
executors,  administrators,  and  guardians. 

982.  Bonds  of  receivers,  assignees,  etc. 

Sec.  982.  All  bonds  or  undertakings  given  by  trustees,  receivers,  assignees, 
or  officers  of  a  court  in  an  action  or  proceeding  for  the  faithful  discharge  of 
their  duties,  where  it  is  not  otherwise  provided,  must  be  in  the  name  of  and 
payable  to  the  State  of  California;  and  u})on  the  order  of  the  court  where  such 
action  or  proceeding  is  pending  may  be  prosecuted  for  the  benefit  of  any  and 
all  persons  interested  therein. 

983.  Actions  on  official  bonds — Effect  of  notice  of  action. 

Sec  983.  When  an  action  is  commenced  in  any  court  in  this  state  for  the 
benefit  of  the  state,  to  enforce  the  penalty  of  or  to  recover  money  upon  au 
official  bond  or  obligation,  or  any  bond  or  obligation  executed  in  favor  of  the 
State  of  California,  or  of  the  people  of  this  state,  the  attorney  or  other  iierson 
prosecuting  the  action  may  file  with  the  court  in  which  the  action  is  commenced 
an  affidavit,  stating  cither  positively  or  on  information  and  belief  that  such  bond 

180 


PUBLIC  OFFICERS.  9S3-99»] 

or  obligation  was  executed  by  the  defendant  or  one  or  more  of  the  defendants 
(designating  whom),  and  made  payable  to  the  people  of  the  state,  or  to  the 
State  of  California,  and  that  the  defendant  or  defendants  have  real  estate  or 
interest  in  lands  (designating  the  county  or  counties  in  which  the  same  is 
situated),  and  that  the  action  is  prosecuted  for  the  benefit  of  the  state;  and 
thereupon  the  clerk  receiving  such  affidavit  must  certify  to  the  recorder  of  the 
county  in  which  such  real  estate  is  situated  the  names  of  the  parties  to  the 
action,  the  name  of  the  court  in  which  the  action  is  pending,  and  the  amount 
claimed  in  the  complaint,  with  the  date  of  the  commencement  of  the  suit. 

984.  Record  of  notice  of  action. 

Sec;  984.  Upon  receiving  siich  certificate  the  county  recorder  must  indorse 
upon  it  the  time  of  its  reception,  and  such  certificate  must  be  filed  and  recorded 
in  the  same  manner  as  notices  of  the  pendency  of  an  action  afi^ecting  real  estate; 
and  any  judgment  recovered  in  such  action  is  a  lien  upon  all  real  estate  situated 
in  any  county  in  which  such  certificate  is  so  filed  belonging  to  the  defendant, 
or  to  one  or  more  of  such  defendants,  for  the  amount  that  the  owner  thereof  is 
or  may  be  liable  upon  the  judgment,  from  the  filing  of  the  certificate;  and  the 
fees  due  the  clerk  and  recorder  for  the  services  required  are  a  charge  against  the 
county  where  the  suit  is  brought,  to  be  recovered  like  other  costs. 

985.  Bonds  of  deputies,  clerks,  etc. 

Sec.  985.  Every  officer  or  body  appointing  a  deputy,  clerk,  or  subordinate 
officer  may  require  an  official  bond  to  be  given  by  the  person  appointed  and 
may  fix  the  amount  thereof. 

986.  Official  bond  of  county  clerk,  loliere  filed. 

Sec  986.  The  official  bond  of  the  county  clerk  shall,  after  being  recorded,  be 
filed  in  the  office  of  the  county  treasurer,  and  the  safe  keeping  of  the  same  is 
hereby  made  the  duty  of  the  county  treasurer.  [New  section,  approved  3Iarcli  27, 
1874;  Amendments  1873-4,  73;  took  effect  sixtieth  day  after  passage. 

AETICLE  X. 

RESIGNATIONS,    VACANCIES,    AND    THE    MODE    OF    SUPPLYING    THEM. 

995.  Resignations,  to  whom  made. 

Sec  995.  Resignations  must  be  in  writing,  and  made  as  follows: 

1.  By  the  governor  and  lieutenant-governor,  to  the  legislature,  if  it  is  in 
session;  and  if  not,  then  to  the  secretary  of  state; 

2.  By  all  officers  commissioned  by  the  governor,  to  the  governor; 

3.  By  senators  and  members  of  the  assembly,  to  the  presiding  officers  of  their 
res}5ective  houses,  who  must  immediately  transmit  the  same  to  the  governor; 

4.  By  all  county  and  township  officers  not  commissioned  by  the  governor,  to 
the  clerk  of  the  board  of  supervisors  of  their  respective  counties; 

5.  By  all  other  apj^ointed  officers,  to  the  body  or  officer  that  appointed  them. 
C.  In  all  cases  not  otherwise  provided  for,  by  filing  the  resignation  in  the 

office  of  the  secretary  of  state. 

996.  Vacancies,  Jiow  they  occur. 

Sec  996.  An  office  becomes  vacant  on  the  happening  of  either  of  the  follow- 
ing events  before  the  expiration  of  the  term : 

1.  The  death  of  the  incumbent; 

2.  His  insanity,  found  upon  a  commission  of  lunacy  issued  to  determine  the 
fact; 

3.  His  resignation; 

4.  His  removal  from  office; 

181 


99G-1003  POLITICAL  CODE. 

5.  His  ceasing-  to  be  an  inhabitant  of  the  state,  or  if  the  o£Eice  be  local,  of  the 
district,  county,  city,  or  township  for  which  he  was  chosen  or  appointed,  or 
within  which  the  duties  of  his  office  are  required  to  be  discharg'ed; 

6.  His  absence  from  the  state  without  permission  of  the  legislature  beyond 
the  period  allow^ed  by  law; 

7.  His  ceasing  to  discharge  the  duties  of  his  office  for  the  period  of  three  con- 
secutive months,  except  when  prevented  by  sickness,  or  when  absent  from  the 
state  by  permission  of  the  legislature; 

8.  His  conviction  of  a  felony,  or  of  any  offense  involving  a' violation  of  his 
official  duties; 

9.  His  refusal  or  neglect  to  file  his  official  oath  or  bond  wdthin  the  time 
prescribed ; 

10.  The  decision  of  a  competent  tribunal  declaring  void  his  election  or 
appointment. 

997.  Notice  of  removal,  by  and  to  ichom  given. 

Sec.  997.  "Whenever  an  officer  is  removed,  declared  insane,  or  convicted  of  a 
felony  or  offense  involving  a  violation  of  his  official  duty,  or  whenever  his 
election  or  appointment  is  declared  void,  the  body,  judge,  or  officer  before  whom 
the  proceedings  were  had,  must  give  notice  thereof  to  the  officer  empowered  to 
fill  the  vacancy. 

998.  Vacancies  in  legislature,  how  filled. 

Sec.  998.  Whenever  a  vacancy  occurs  in  either  house  of  the  legislature  the 
governor  must  at  once  issue  a  writ  of  election  to  fill  such  vacancy. 

999.  Vacancies,  how  filed  ivhen  not  otherioise  provided  for. 

Sec.  999.  When  any  office  becomes  vacant,  and  no  mode  is  provided  by  law 
for  filling  such  vacancy,  the  governor  must  fill  such  vacancy  by  granting  a  com- 
mission, to  expire  at  the  end  of  the  next  session  of  the  legislature  or  at  the  next 
election  by  the  people. 

1000.  Vacancies  occurring  during  session  of  legislature. 

Sec.  1000.  Vacancies  occurring  in  office  during  the  recess  of  the  legislature, 
the  appointment  to  which  is  vested  in  the  governor  and  senate,  or  in  the  legis- 
lature, must  be  filled  by  apj^ointment  made  by  the  governor;  but  the  person  so 
appointed  can  only  hold  the  office  until  the  adjournment  of  the  next  session  of 
the  legislature. 

1001.  Vacancies  in  certain  state  offices,  how)  filled. 

Sec.  1001.  A  vacancy  in  the  office  of  either  the  secretary  of  state,  controller, 
treasurer,  attorney-general,  surveyor-general,  or  clerk  of  the  supreme  coui't, 
must  be  filled  by  a  person  appointed  by  the  governor,  who  shall  hold  his  office 
for  the  balance  of  the  unexpired  term.  [Amendment,  approved  April  1,  1876; 
Amendments  1875-G,  23;  took  effect  sixtieth  day  after  passage.^"^ 

1002.  Harbor  commissioner  or  stq'yerintendent  of  public  instruction. 

Sec.  1002.  A  vacancy  in  the  office  of  either  the  suj)erintendent  of  public 
instruction  or  state  harbor  commissioner  must  be  filled  by  a  person  appointed 
by  the  governor. 

1003.  Directors  of  insane  asylum. 

Sec.  1003.  Any  person  appointed  to  fill  a  vacancy  in  the  board  of  directors 
of  the  insane  asylum  holds  only  for  the  unexpired  term  of  his  predecessor. 

(a)  Original  section:  the  governor.    At  the  next  general  election  subsequent 

Sec.  101)1.  A  vacancy  in  the  office  of  either  the  secre-  to  the  occurrence  of  the  vacancy  a  successor  must  be 

tary  of  state,  controller,  treasurer,  attomey-gejieral,  elected,  who  must  qualify  and  enter  upon  the  duties  of 

fiurveyor-gencral.  state  printer,  clerk  of  the  supreme  his  office  on  the  first  Monday  in  December  next  after 

court,'  or  state   harbor  commissioner,  electi-d  by  tlie  his  election,  and  who  holds  his  office  for  the  balance  of 

state  at  large,  must  be  filled  by  a  person  appointed  by  the  unexpired  term. 

182 


PUBLIC  OFFICEES.  1004-1031 

1004.  Poiver  and  duty  of  officers  filling  unexpired  terms. 

Sec.  1004.  Any  person  elected  or  ajDpointed  to  fill  a  vacancy,  after  filing  his 
official  oath  and  bond,  possesses  all  the  rights  and  powers  and  is  subject  to  all 
the  liabilities,  duties,  and  obligations  of  the  officer  whose  vacancy  he  fills. 

AKTICLE  XI. 

PROCEEDINGS    TO    COMPEL    THE    DELIVERY    OF    BOOKS    AND    PAPERS   BY    OFFICERS   TO 

THEIR  SUCCESSORS. 

1014.  Possession  of  books  and  papers. 

Sec  1014.  Every  public  officer  is  entitled  to  the  possession  of  all  books  and 
papers  pertaining  to  his  office,  or  in  the  custody  of  a  former  incumbent  by 
virtue  of  his  office, 

1015.  Proceedings  to  compel  delivery  of. 

Sec  1015.  If  any  person,  whether  a  former  incumbent  or  another  person, 
refuse  or  neglect  to  deliver  to  the  actual  incumbent  any  such  books  or  papers, 
such  actual  incumbent  may  apjoly  by  petition  to  any  court  of  record  sitting  in 
the  county  where  the  person  so  refusing  or  neglecting  resides,  or  to  any  judge 
of  the  district  or  county  court  residing  therein,  and  the  court  or  officer  applied 
to  must  proceed  in  a  summary  way,  after  notice  to  the  adverse  party,  to  hear 
the  allegations  and  proof  of  the  parties,  and  to  order  any  such  books  or  papers 
to  be  delivered  to  the  petitioners. 

1016.  Attachment  and  ivarrant  to  enforce. 

Sec  1016.  The  execution  of  the  order  and  the  delivery  of  the  books  and 
papers  may  be  enforced  by  attachment  as  for  a  witness,  and  also,  at  the  request 
of  the  petitioner,  by  a  warrant  directed  to  the  sheriff  or  a  constable  of  the  county, 
commanding  him  to  search  for  such  books  and  papers,  and  to  take  and  deliver 
them  to  the  petitioner. 

AKTICLE  XII. 

MISCELLANEOUS    PROVISIONS. 

1026.  Seals  of  executive  officers. 

Sec  1026.  Except  where  otherwise  specially  provided  by  law,  the  seals  of 
office  of  the  various  executive  officers  ai'e  those  in  use  by  such  officers  at  the  time 
this  code  takes  effect,  and  each  of  such  officers  must  at  once  file  a  description 
and  impression  of  such  seal  in  the  office  of  the  secretary  of  state. 

1027.  Great  seal. 

Sec  1027.  The  great  seal  of  the  state  is  the  one  in  use  at  the  time  of  the  adop- 
tion of  this  code. 

1028.  Executive  and  judicial  officers  may  administer  oaths. 

Sec  1028.  Every  executive  and  judicial  officer  may  administer  and  certify 
oaths. 

1029.  Salaries  of  officers. 

Sec  1029.  Unless  otherwise  provided  by  law,  the  salaries  of  officers  must  be 
paid  out  of  the  general  fund  in  the  state  treasury,  monthly,  on  the  last  day  of 
each  month. 

1030.  Office  hours. 

Sec  1030.  Unless  otherwise  provided  by  law,  everj^  officer  must  keep  his 
office  open  for  the  transaction  of  business  from  ten  o'clock  a.  m.  until  four 
o'clock  p.  M.  each  day,  excej^t  uj)on  holidays. 

1031.  Signature  of  officers  acting  ex  officio. 

Sec.  1031.  When  an  officer  discharges  ex  officio  the  duties  of  another  office 

183 


1031-1041  POLITICAL  CODE. 

than  that  to  which  he  is  elected  or  ai^poiuted,  his  official  signature  and  attesta- 
tions must  be  in  the  name  of  the  office  the  duties  of  which  he  discharges. 
1032.  Records  open  to  public  inspection,  except  in  divorce. 

Sec.  1032.  The  public  records  and  other  matters  in  the  office  of  an}'  officer, 
are  at  all  times,  during  office  hours,  ojien  to  the  inspection  of  any  citizen  of  this 
state.  In  all  actions  for  divorce,  the  pleadings,  and  the  testimony  taken  and 
filed  in  said  actions,  shall  not  be  by  the  clerk  with  whom  the  same  is  filed,  or 
the  referee  before  whom  the  testimony  is  taken,  made  public,  nor  shall  the  same 
be  allowed  to  be  inspected  by  any  person  except  the  parties  that  may  be  inter- 
ested, or  the  attorneys  to  the  action,  or  by  an  order  of  the  court  in  which  the 
action  is  pending;  a  copy  of  said  order  must  be  filed  with  the  clerk.  In  cases 
of  attachment,  the  clerk  of  the  court  with  whom  the  comjjlaint  is  filed  shall  not 
make  public  the  fact  of  the  filing  of  such  complaint,  or  of  the  issuing  of  such 
attachment,  until  after  the  filing  of  return  of  service  of  attachment.  {Amend- 
ment, approved  March  30, 1874;  Amendments  1873-4,  14;  took  effect  July  6, 1874.^'^ 


TITLE  11. 

®f  (flections. 

Chapter   I.  General  Provisions  relating  to  Elections 1041 

II.  Qualifications  and  Disabilities  of  Electors 1083 

III.  Eegistration  of  Electors 1094 

IV.  Election  Precincts 1127 

V.  Boards  of  Election 1142 

VI.  Opening  and  Closing  the   Polls 1160 

VII.  Poll  Lists 1174 

VIII.  Election  Tickets  and  Ballots 1185 

IX.  Voting  and  Challenges 1224 

X.  Canvassing  and  Returning  the  Vote 1252 

XI.  Canvass    of   Eeturns;    Declaration   of  Result;  Commissions 

AND  Certificates  of   Election 1278 

XII.  Elections  for  Electors  of   President  and  Vice-President  . .   1307 

XIII.  Elections  for  Members  of  Congress 1332 

XIV.  Primary  Elections 1357 

CHAPTER  I. 

GENEBAL  PROVISIONS   RELATING  TO   ELECTIONS. 

Article   I.   Time  of  Holding  Elections lOil 

II.   EiiKCbrioN  Pkoclamations 1053 

III.  Miscellaneous  Provisions 1066 

ARTICLE  I. 

time  of  holding  elections. 

1041.  General  election,  when  to  be  held. 

Sec.  1041.  There  must  be  held  throughout  the  state,  on  the  first  AVednesday 
in  September,  in  the  year  eighteen  hundred  and  seventy-three,  and  in  every 
second  year  thereafter,  and  also  on  the  Tuesday  next  after  the  first  Monday  of 
November  in  each  bissextile  or  leaj)  ypar,  an  election  to  be  known  as  the  gen- 
eral election. 

(a)  The  original  Bection  consisted  of  the  first  sentence  alone. 

184 


ELECTIONS.  1042-1067 

1042.  Judicial  eleclion,  when  to  he  held. 

Sec.  1042.  There  must  be  held  throughout  the  state,  on  the  third  Wednesday 
in  October,  in  the  year  eighteen  hundred  and  seventy-three,  and  in  every  second 
year  thereafter,  an  election  to  be  known  as  the  judicial  election. 

1043.  Si^ecial  elections^  when  to  he  held. 

Sec.  1043.  Special  elections  are  such  as  are  held  to  suj^ply  vacancies  in  any 
office,  and  are  held  at  such  times  as  may  be  designated  by  the  proper  board  or 
officer. 

ARTICLE  11. 

ELECTION    PROCLAMATIONS. 

1053.  Election  proclamations  hy  governor. 

Sec  1053.  At  least  thirty  days  before  each  general  or  judicial  election,  and 
whenever  he  orders  a  sj^ecial  election,  the  governor  must  issue  an  election 
>^jroclamation,  under  his  hand  and  the  great  seal  of  the  state,  and  transmit 
copies  thereof  to  the  board  of  supervisors  of  the  counties  in  which  such  elec- 
tions are  to  be  held. 

1054.  Governor' s  proclamation,  what  to  contain. 
Sec.  1054.  Such  proclamation  must  contain: 

1.  A  statement  of  the  time  of  election,  and  of  the  offices  to  be  filled; 

2.  An  ofi'er  of  rewards  in  the  following  form:  "And  I  do  hereby  offer  a 
reward  of  one  hundred  dollars  for  the  arrest  and  conviction  of  any  and  every 
person  violating  any  of  the  provisions  of  Title  IV,  Part  I,  of  the  Penal  Code; 
such  rewards  to  be  paid  until  the  total  amount  hereafter  expended  for  the 
purpose  reaches  the  sum  of  ten  thousand  dollars."     [See  post,  13,041.] 

1055.  Supervisors  must  puhlish  proclamation,  etc. 

Sec.  1055.  The  board  of  supervisors,  uj)on  receipt  of  such  proclamation, 
may  in  their  discretion  cause  a  copy  of  the  same  to  be  published  in  some  news- 
paper printed  in  the  county  (if  any),  and  to  be  posted  at  each  place  of  election, 
at  least  ten  days  before  the  election,  or  may  cause  written  or  printed  notices 
of  the  election  to  be  posted  at  each  election  precinct  at  least  ten  days  before 
the  election.  [Amendment,  approved  Mai-ch  15,  1876;  Amendments  1875-6,  24; 
look  effect  from  passage.''^'' 

1056.  Election  proclamations  hy  supervisors. 

Sec.  1056.  Whenever  a  special  election  is  ordered  by  the  board  of  sujjer- 
visors,  they  must  issue  an  election  pi'oclamation,  containing  the  statement 
provided  for  in  subdivision  1  of  section  1054,  and  must  publish  and  post  it  in 
the  same  manner  as  proclamations  issued  by  the  governor. 

ARTICLE  III. 

miscellaneous  provisions. 

1066.  Plurality  to  elect.  ^ 

Sec.  1066.  The  person  receiving  at  any  election  the  highest  ntimber  of  votes 
for  any  office  to  be  filled  at  such  election  is  elected  thereto. 

1067.  Proceedings  on  tie  vote  other  than  for  governor  or  lieutenant-governor. 

Sec.  1067.  If  at  any  election,  escej)t  that  for  governor  or  lieutenant-governor, 
two  or  more  persons  receive  an  equal  and  the  highest  .number  of  votes,  there  is 
no  choice,  and  a  special  election  to  fill  such  office  n^ust  be  ordered  by  the  proper 
board  or  officer. 

[a]  Original  section:  Code,  to  be  published  in  gome  newspaper  printed  in 

Sec.  1055.  The  board  of  supervisors,  upon  receipt  of  the  county  (if  any),  and  to  be  posted  at  each  place  of 

such  proclamation,  must  cause  a  copy  of  the  same,  election,  at  least  ten  days  before  the  election. 

together  with  a  copy  of  Title  IV,  Part  I,  of  the  Penal 

185 


10G8-1096  POLITICAL  CODE. 

1068.  Same,  on  tie  vote  for  governor  or  lieutenant-governor. 

Sec.  1068.  In  case  any  two  or  more  persons  have  an  equal  and  highest  num- 
ber of  votes  for  either  governor  or  lieutenant-governor,  the  legislature  must,  by 
joint  vote  of  both  houses,  choose  one  of  the  persons  to  fill  such  office. 

1069.  Electors  privileged  from  arrest,  when. 

Sec.  1069.  Electors  are  privileged  from  arrest,  exeejit  for  an  indictable 
ofi'ense,  during  their  attendance  on  the  election,  and  in  going  to  and  returning 
from  the  same. 

1070.  Electors  exempt  from  militia  duty,  tvhen. 

Sec.  1070.  No  elector  is  obliged  to  perform  militia  duty  on  the  day  of  election, 
except  in  time  of  war  or  public  danger. 

1071.  No  fees  for  certificate  of  registration. 

Sec.  1071.  No  fees  must  be  charged  for  registration  or  certificates  thereof. 

1072.  Compensation  of  officers  of  election. 

Sec.  1072.  The  compensation  of  members  of  boards  of  election  and  clerks 
must  be  fixed  and  audited  by  the  board  of  supervisors,  and  paid  out  of  the 
county  treasury. 

1073.  Supervisors  to  have  blanks  prepared. 

Sec.  1073.  The  necessary  printed  blanks  for  poll  lists,  tally  lists,  lists  of 
voters,  oath,  and  returns,  together  wdth  envelopes  in  which  to  inclose  returns, 
must  be  furnished  by  the  board  of  supei'\'isors  to  the  officers  of  each  election 
precinct  at  the  exjiense  of  the  county. 

CHAPTER  II. 

QUALIFICATIONS   AND   DISABILITIES   OP   ELECTORS. 

1083.  Qualifications  of  voter. 

Sec.  1083.  Every  male  citizen  of  the  United  States,  who  shall  have  been  a 
resident  of  the  state  six  months  next  preceding  the  election,  and  of  the  precinct 
in  which  he  claims  his  vote  thirty  days,  and  whose  name  is  enrolled  on  the  great 
register  of  such  county,  is  a  qualified  elector  thereof. 

1084.  Certain  citizens  not  entitled  to  vote. 

Sec.  1084.  No  idiot  or  insane  person,  or  person  convicted  of  any  infamous 
crime,  is  entitled  to  the  privilege  of  an  elector. 

CHAPTER  III. 

REGISTRATION   OF   ELECTORS. 

1094.  Great  register  to  he  kept. 

Sec.  1094.  There  must  be  kept  in  the  office  of  the  county  clerk  of  each  county 
a  gi-eat  register. 

1095.  Names  of  electors  to  he  entered. 

Sec.  1095.  In  the  great  register  the  clerk  must,  as  hereinafter  provided,  enter 
the  names  of  the  qualified  electors  of  the  county  whose  names  are  not  already 
thereon. 

1096.  Substance  of  entry. 

Sec.  1096.   Such  entry  must  show: 

1.  The  name,  at  length; 

2.  The  age,  omitting  fractions  of  years; 

3.  The  country  of  the  nativity; 

4.  The  place  of  residence  (giving  tlie  ward  or  precinct); 

180 


ELECTIONS.  lOOG-1102 

5.  If  naturalized,  the  time  and  place  of  naturalization;  and, 

6.  The  date  of  the  entry; 

— Of  each  person.     Each  name  must  he  numbered  in  the  order  of  its  entry. 

1097.  Bides  governing  entry. 

Sec.  1097.  No  person's  name  must  be  entered  by  the  clerk,  unless: 

1.  Upon  a  certificate  of  registration  in  another  county,  showing  that  such  reg- 
istration has  been  canceled,  and  upon  proof,  by  the  affidavit  of  the  party,  that 
he  is  an  elector  of  the  county  in  which  he  seeks  to  be  registered; 

2.  Upon  the  returns  of  the  assessor  of  the  county; 

3.  If  a  naturalized  citizen,  upon  the  production  of  his  certificate  of  naturali- 
zation, or  upon  his  own  affidavit  that  it  is  lost  or  out  of  his  possession,  which 
affidavit  must  state  the  place  of  his  nativity,  and  the  time  and  place  of  his  nat- 
uralization, together  with  his  affidavit  that  he  has  resided  in  the  United  States 
for  five  years,  and  in  this  state  for  six  months  next  preceding  the  time  of  appli- 
cation, and  that  he  is  an  elector  of  the  county; 

4.  If  born  in  a  foreign  country,  ujDon  his  affidavit  that  he  became  a  citizen  of 
the  United  States  by  virtue  of  the  naturalization  of  his  father,  whilst  he  was 
residing  in  the  United  States,  and  under  the  age  of  twenty-one  years,  and  that 
he  is  an  elector  of  the  county; 

5.  Upon  the  production  and  filing  of  a  certified  copy  of  the  judgment  of  a 
district  court  directing  such  entry  to  be  made; 

6.  In  other  cases,  upon  the  affidavit  of  the  party  that  he  is  an  elector  of  the 
county; 

7.  In  every  case,  the  affidavit  of  the  party  must  show  all  the  facts  required 
to  be  stated  in  the  entry  on  the  register,  except  the  date  and  number  of  the 
entry.  [Amendment,  approved  March  30,  1874;  Amendments  1873-4,  15;  took 
effect  July  6,  1874. ^"^ 

1098.  Assessor's  roll  of  electors. 

Sec.  1098.  The  assessor  of  each  county  must  keep  a  roll  of  electors,  on  which, 
and  upon  like  proof  as  is  required  for  entry  upon  the  great  register,  he  must 
enroll  the  name  of  any  elector  of  the  county  making  application  to  him  for  that 
purj)ose. 

1099.  What  enrollment  must  show. 

Sec.  1099.  Such  enrollment  must  show  the  same  facts  as  are  required  to  be 
shown  by  the  entry  upon  the  great  register. 

1100.  Duty  of  clerk  or  assessor  relative  to  certain  proof s  produced  before  him. 
Sec.  1100.  The  clerk  or  assessor  must,  upon  eveiy  certificate  of  naturaliza- 
tion presented  to  him  as  evidence  of  citizenship,  indorse  and  subscribe  a  state- 
ment of  the  time  of  j)resentation  and  of  his  action  thereon. 

1101.  Assessor  must  make  monthly  returns  of  his  enrollment. 

Sec.  1101.  At  the  end  of  every  month  the  assessor  must  return  to  the  county 
clerk  a  certified  copy  of  all  entries  made  uj)on  his  roll  of  electors  during  such 
month,  and  all  affidavits  made  for  the  purpose  of  procuring  such  enrollment. 

1102.  Duty  of  clerk  upon  receipt  of  the  return. 

Sec.  1102.  Upon  the  receipt  of  such  return,  the  clerk  must  at  once  enter 

(a)  The  original  Bection  differed  iu  the  third  and  he  states  he  became  a  citizen  of  the  United  States  by 

fourlh  subdivisions,  -which  were  as  follows:  virtue  of  the  naturalization   of  his  father  whilst   he 

3.  If  a  naturalized  citizen,  iipou  the  production  of  was  residing  in  the  United  States,  and  under  the  age  of 
his  certificate  of  naturalization,  or  upon  his  own  affi-  twent}--one  years,  upon  the  production  of  a  certified 
davit  of  its  loss,  together  with  the  affidavit  of  a  regis-  copy  of  his  father's  certificate  of  naturalization,  or 
tered  citizen  to  the  effect  that  the  applicant  has  resided  upon  such  proof  of  residence  and  reputed  citizenship 
in  the  United  States  for  five  years  and  in  this  state  for  as  is  required  by  the  preceding  subdi\'ision,  and  upon 
Bix  months  next  preceding  the  time  of  application,  and  proof  by  the  affidavit  of  the  party  that  he  is  an  elector 
is  reputed  to  be  a  citizen  of  the  United  States,  and  that  of  the  county. 

deponent  believes  him  to  be,  and  proof  by  the  affidavit         In  the  seventh  subdivision  the  original  section  had 
of  the  party  that  he  is  an  elector  of  thecounty;  the  word  "  shows"  instead  of  "must  show." 

4.  If  born  in  a  foreign  country,  but  by  his  affidavit 

187 


1102-1108  POLITICAL  CODE. 

.upon  the  great  register  the  names  contained  and  the  statements  made  in  such 
return. 

1103.  Affidavits  must  he  filed  in  clerk's  office. 

Sec.  1103.  The  clerk  must  file  and  preserve  all  affidavits  returned  to  him  by 
the  assessor  or  used  before  him  for  the  purpose  of  obtaining  registration. 

1104.  Persons  not  to  be  registered  in  diffierejit  counties  at  same  time. 

Sec.  1104.  No  jierson  must  cause  himself  to  be  registered  or  enrolled  in  one 
county  Avhen  his  registration  in  another  remains  uncanceled. 

1105.  Cancellation  of  entry. 

Sec.  1105.  There  must  be  left  opposite  each  name  in  the  great  register  a 
blank  for  cancellation.  Cancellation  is  made  by  writing  in  such  blank  the  word 
"  Canceled,"  and  a  statement  of  the  reasons  therefor. 

1106.  When  entry  must  be  canceled. 

Sec.  hog.  The  clerk  must  cancel  the  entr'y  in  the  following  cases: 

1.  At  the  request  of  the  party  registered; 

2.  When  he  knows  of  the  death  or  of  the  removal  of  the  person  registered; 

3.  "When  the  insanity  of  the  person  registered  is  legally  established; 

4.  Upon  the  production  of  a  certified  copy  of  a  judgment  of  felonj^  in  full 
force  against  the  person  registered,  or  upon  information  of  such  conviction,  ob- 
tained as  hereinafter  provided; 

5.  Upon  the  production  of  a  certified  copy  of  a  judgment  directing  the  can- 
cellation to  be  made; 

6.  Upon  the  certificate  of  the  board  of  election  of  any  precinct  sent  uj)  with 
the  election  returns,  stating  the  death  or  removal,  wdthin  their  own  knowledge, 
of  person  registered; 

7.  When  it  appears,  by  the  returns  made  by  the  board  and  clerks  of  election, 
that  the  respective  party  did  not  vote  during  the  next  preceding  three  years  at 
any  general  or  judicial  election; 

8.  The  clerk  shall  cancel  uj^on  the  great  register  every  name  found  thereon 
which  is  also  found  upon  the  register  of  deaths,  provided  for  in  section  three 
thousand  and  seventy -nine  of  this  code; 

9.  Every  judge  before  whom  proceedings  Avere  had,  which  result  in  any  male 
person  being  declared  incapable  of  taking  care  of  himself  and  managing  his 
property,  and  for  whom  a  guardian  of  his  person  and  estate  is  accordingly  ap- 
I^ointed,  or  which  result  in  such  person  being  committed  to  a  state  insane 
asylum,  as  an  insane  person,  shall  file  with  the  county  clerk  a  certificate  of  that 
fact,  and  thereupon  the  clerk  shall  cancel  the  name  of  such  person  upon  the 
great  register,  if  found  thereon; 

10.  The  county  clerk  shall,  also,  in  the  first  Aveek  of  July  in  each  year, 
examine  the  records  of  the  courts  having  jurisdiction  in  cases  of  felony,  wdthin 
his  county,  and  cancel  upon  the  great  register  the  names  of  all  persons  appear- 
ing thereon  who  shall  have  been  convicted  of  felony  in  any  of  such  courts,  and 
which  conviction  shall  have  been  carried  into  efiect.  [Amendment,  ajJiiroved 
March  30,  1874;  Amendments  1873-4,  16;  took  effect  July  0,  1874.'''> 

1107.  Clerk  must  give  certificate  of  registration. 

Sec  1107.  Upon  the  application  of  the  party  in  person  or  in  writing,  the 
clerk  must  give  him  or  his  agent  a  certified  copy  of  the  entries  upon  the  great 
register  relating  to  such  jDarty. 

1108.  Persons  refused  registration  may  proceed  by  action. 

Sec.  1108.  If  the  clerk  refuses  to  enter  the  name  of  any  qualified  elector  of 

(a)  The  original  section  did  not  have  any  one  of  the  fourth  it  did  not  have  any  of  the  -words  after  the  word 
seventh,  eighth,  ninth  or  tenth  subdivisions.    In  the     "  registered." 

188 


ELECTIONS-  1108-1113 

the  county  upon  the  great  register,  such  elector  may  proceed  by  action  in  the 
district  court  to  compel  such  entry. 

1109.  Amj  person  may  proceed  by  action  (a  have  registration  canceled. 

Sec,  1109.  Any  person  may  proceed  by  action  in  the  district  court  to  compel 
the  clerk  to  cancel  any  entry  made  on  the  great  register  illegally,  or  that  ought 
to  be  canceled  by  reason  of  facts  that  have  occurred  subsequent  to  the  time  of 
such  entry;  but  if  the  person  whose  name  is  sought  to  be  canceled  be  not  a 
party  to  the  action,  the  court  may  order  him  to  be  made  a  party  defendant. 
[Amendment,  approved  March  30,  1874;  Amendments  1873-4,  17;  took  effect  July 
C,  1874.'"' 

1110.  Parties  plaintiff  to  such  actions. 

Sec.  1110.  In  an  action  under  the  authority  of  section  1108  as  many  pei'soiis 
may  join  as  plaintiffs  as  have  causes  of  action. 

1111.  Parties  defendant. 

Sec  1111.  In  an  action  under  the  authority  of  section  1109  the  clerk  and  as 
many  persons  as  there  are  causes  of  action  against  may  be  joined  as  defendants. 

1112.  Costs,  luhen  recoverable  against  clerk. 

Sec  1112.  Costs  cannot  be  recovered  against  the  clerk  in  any  action  under 
the  authority  of  this  chapter  unless  it  is  alleged  in  the  complaint,  and  estab- 
lished on  the  trial,  that  the  clerk  knowingly  and  willfully  violated  a  plain  duty. 

1113.  Clerk  to  make  copy  of  great  register. 

Sec.  1113.  Before  the  fifth  day  of  August  in  each  year  in  which  there  shall 
be  a  general  or  presidential  election,  each  county  clerk  must  make  a  copy  of 
the  uncanceled  entries  existing  on  the  great  register  on  the  preceding  first  day 
of  August.  In  lieu  of  such  copy,  for  the  city  and  county  of  San  Francisco,  the 
county  clerk  must,  from  the  poll  list  of  the  general  and  judicial  elections,  held 
in  September  and  October,  eighteen  hundred  and  seventy-three,  and  from  sim- 
ilar poll  lists  of  the  general  and  judicial  elections  held  in  ever}^  second  year 
thereafter,  make  out  ward  registers,  one  for  each  ward  in  said  city  and  county, 
and  upon  each  such  ward  register  he  must  enter  the  names  of  the  qualified 
electors  of  the  ward  appearing  on  the  last  general  and  judicial  poll  lists  of  the 
ward,  alphabetically  arranged,  together  with  the  entries  respectively  appearing  on 
the  great  register  opposite  such  names.  He  shall  not  enter  the  name  of  the  same 
person  on  more  than  one  ward  register.  He  must,  however,  enter  upon  the 
proper  ward  register,  the  name  of  any  person,  who,  being  duly  sworn,  shall 
make  satisfactory  proof  that  he  is  an  elector  of  such  ward,  and  that  his  name  is 
uncanceled  on  the  great  register  of  said  city  and  county.  He  must,  upon  satis- 
factory proof,  obtained  in  like  manner,  transfer  any  name  from  one  ward  reg- 
ister to  another,  at  the  same  time  canceling  the  name  on  the  ward  register  from 
which  the  transfer  is  made,  noting  such  transfer  on  each  such  ward  register, 
opposite  the  name.  For  the  purposes  of  registration  and  prei)aration  of  ward 
registers,  and  coj)ies  thereof,  required  by  law,  the  county  clerk  mvist  employ 
such  assistants,  and  for  such  times  and  at  such  compensation  as  shall  from  time 
to  time  be  authorized  by  the  board  of  supervisors.  All  fees  received  for  regis- 
tration and  transfers  must  be  paid  into  the  treasury  of  the  city  and  county,  and 
out  of  such  treasury  must  be  paid  the  compensation  of  such  assistants,  and  all 
the  necessary  expenses  of  registration,  preparation  of  registers,  and  of  trans- 
fers, upon  the  proper  orders  of  the  board  of  supervisors.  The  board  of  sujDer- 
visors  of  any  couurty  may,  by  order,  provide  for  the  preparation,  printing  and 
distribution  of  township  registers  for  each  township,  instead  of  copies  of  the 

(a)  The  original  section  did  not  have  the  last  clause  commencing  with  the  words  "  but  if  the  ijerson." 

189 


1113-lllG  POLITICAL  CODE. 

great  register,  in  the  same  manner  as  is  herein  above  provided  respecting  ward 
registers  in  the  city  and  county  of  San  Francisco.  When  so  ordered,  the  j^ro- 
visions  of  law  applicable  to  the  city  and  county  of  San  Francisco,  in  respect  to 
the  preparation,  correction,  issue,  distribution,  posting,  use,  and  return  of 
ward  registers,  sball  api:)ly  to  such  county,  the  word  "  township"  being  sub- 
stituted for  "  ward  "  for  that  purpose,  wherever  it  occurs;  except  that  the  num- 
ber of  additional  copies  to  be  printed  of  such  registers  shall  not  exceed  fifty 
for  each  one  thousand  votes  cast  in  the  respective  townships  at  the  next  preced- 
ing election.  The  board  of  supervisors  shall  fix  the  compensation  of  the 
county  clerk  for  his  services  in  preparing  the  township  registers,  which  shall  be 
paid  out  of  the  county  treasury.  Such  order  may  be  repealed  and  re-enacted 
as  often  as  the  board  of  supervisors  may  deem  it  expedient  to  do  so.  [Amend- 
ment, approved  March  30,  1874;  Amendments  1873-4,  17;  took  effect  July  6, 
1874.'=') 

1114.  Names  must  be  arranged  alphabeficalhj  and  numbered. 

Sec.  1114.  In  such  copy  and  registers  the  names  must  be  arranged  alpha- 
betically, according  to  surnames,  and  must  be  numbered  consecutively,  from 
the  first  to  the  last  name,  inclusive.  [Amendment,  approved  3Iarch  30,  1874; 
Amendments  1873-4,  19;  took  effect  July  G,  1874. '"> 

1115.  Great  register  must  be  printed. 

Sec.  1115.  Within  fifteen  days  after  making  such  lists,  the  clerk  must  have 
printed  a  sufiicient  number  of  copies  thereof  to  supply  each  election  precinct 
in  the  county  with  not  less  than  ten  copies  thereof,  and  fifty  additional  for 
every  one  thousand  votes  cast  in  the  county  at  the  next  preceding  general  elec- 
tion, except  that  in  the  city  and  county  of  San  Francisco  the  county  clerk  must 
have  printed  a  sufficient  number  of  copies  of  each  ward  register  to  supjily 
two  hundred  and  fifty  copies  thereof  for  the  first  one  thousand  votes,  or  frac- 
tion thereof,  cast  in  the  \vard  at  the  next  preceding  general  election,  and  fifty 
additional  copies  for  each  additional  one  thousand  votes,  or  fraction  thereof 
above  five  hundred;  but  in  all  the  counties  of  this  state,  other  than  those  of 
the  first  class,  as  classified  by  this  code,  the  clerk  of  each  of  such  counties,  if 
the  board  of  sujDervisors,  in  their  discretion,  so  order,  must,  if  there  is  a  sufficient 
number  of  the  register  last  printed  on  hand  to  provide  not  less  than  four  copies 
for  each  precinct  in  such  county,  cancel  the  names  of  all  persons  thereon  required 
to  be  canceled,  and  furnish  the  same  to  each  precinct,  together  with  the  same 
number  of  copies  of  a  supplement  containing  the  uncanceled  entries  made  upon 
the  great  register  subsequent  to  the  last  publication  thereof.  [Amendment,  ap- 
proved March  24,  187G;  Amendments  1875-6,  24;  took  effect  on  passaged 

1116.  Printed  copies,  hoiv  distributed. 

Sec.  IIIG.  The  clerk  must,  as  soon  as  such  copies  of  the  great  register,  or 
ward,  or  township  registers  are  printed: 

1.  Post  one  copy  in  some  public  place  in  the  court-house. 

2.  Deliver,  upon  demand,  one  copy  to  each  county  and  township  officer  in 
the  county. 

3.  Transmit  and  cause  to  be  delivered  not  less  than  ten  copies  to  each  board 
of  election  in  the  county;  but  in  cases  where  ward  registers  are  printed,  ten 

(a)  Original  sfiction:  (c)  The  original  srotion  consisted  only  of  the  first 

Sec.  ni:J.  Before  tbe  fifth  day  of  August,  In  theyear  clause  down  to  und  including  the  words  "  next  preced- 

eighteea  hundred  and  seventy-three,  and  in  every  sec-  ing  general  election."               * 

ond  year  thereafter,  each  county  clerk  must  make  out  It  was  previously  amended  by  act  of  March  30,  1874 

a  copy  of  the  uncanceled  entries  existing  on  the  Great  (Amendments  1873-1,  19)  so  as  to  read  like  the  text  with 

Eegister  on  the  preceding  first  day  of  August.  the  exception  of  the  last  clause  commencing  with  the 

{h)  The  original  section  did  not  have  the  words  "  and  words  "  but  in  all  the  counties." 
registers." 

190 


ELECTIONS.  1116-1130 

copies  shall  be  delivered  to  each  board  of  election  in  the  respective  wards,  and 
one  copy  of  all  the  registers  to  each  board  of  election  in  the  county, 

4.  Preserve  five  copies  in  the  office,  for  the  inspection  of  the  public. 

5.  Transmit  to  the  State  Librar}^  Mercantile  Library,  Mechanics'  Institute, 
and  Odd  Fellows'  Library,  of  San  Francisco,  one  copy  each. 

G.  Deliver  one  copy  to  each  elector  of  the  county  or  respective  ward,  applying 
therefor,  until  the  remainder  of  the  edition  printed  is  exhausted;  provided,  that 
nothing  in  this  section,  except  the  first,  third,  and  fourth  subdivisions  thereof, 
shall  apply  to  counties  other  ^han  of  the  first  class.  [Amendment,  approved 
Ilarcli  24,  187G;  Amendments  1875-6,21;  took  effect  on  passage}^'' 

1117.  Certified  copy,  prima  facie  evidence. 

Sec.  1117.  A  certified  copy  of  an  uncanceled  entry  upon  the  great  register,  is 
prima  facie  evidence  that  the  person  named  in  the  entry  is  an  elector  of  the 
county.  [Amendment,  appr-oved  March  30,  1874;  Amendments  1873-4,  20;  took 
effect  July  6,  1874.^''' 

An  Act  to  compel  the  county  clerk  of  the  city  and  county  of  San  Francisco  to  keep  open  his 
office  upon  all  election  clays. 

Approved  March  7,  1876;  1875-6,  142. 

Clerk  to  keep  office  open. 

Section  1.  The  county  clerk  of  the  city  and  county  of  San  Francisco  shall 
keep  his  office  open  continuously  upon  all  election  days  from  sunrise  until  six 
o'clock  and  thirty  minutes  of  the  evening  of  the  same  day,  for  the  sole  and  only 
purpose  of  registering  voters,  and  giving  voters  certificates  of  registration  and 
transfers  to  the  wards  they  live  in. 

Sec  2.  This  act  shall  take  effect  from  and  after  its  passage. 


CHAPTEE  IV. 

ELECTION   PRECINCTS. 

1127.  Supervisors  to  establish  election  precincts. 

Sec.  1127.  The  board  of  supervisors  of  each  county  must  establish  a  conTe- 
nient  number  of  election  precincts  therein. 

1128.  Boundaries  to  be  defined. 

Sec.  1128.  In  the  order  establishing  precincts  the  boundaries  thereof  must 
be  defined. 

1129.  Board  may  alter,  etc.,  precincts. 

Sec  1129.  The  board  may  from  time  to  time  change  the  boundaries  of,  create 
new,  or  consolidate  established  precincts. 

1130.  Limitations  on  powers  given  herein. 

Sec  1130.  The  following  limitations  are  imposed  upon  the  powers  given  the 
supervisors  in  this  chapter: 

1.  No  precinct  must  be  so  established  as  to  embrace  more  than  one  township, 
nor  parts  of  two  or  more  townships,  nor  in  such  manner  that  its  exterior  limits 
cross  the  exterior  boundaries  of  any  township,  incorporated  town,  or  city,  or 
any  ward,  district,  or  other  territorial  subdivision  for  which  local  officers  are  to 
be  elected,  except  a  school  or  road  district; 

(a)  The  original  section  did  not  have  the  words  "of  applying  therefor  until  the  remainder  of  the  edition 

wie  Great  Kegister,  or  ward,  or  township  registers."  printed  is  exhausted. 

The  third,  fifth  and  sixth  subdivisions  were  as  follows;  It  was  previously  amended  by  act  of  March  30,  187-i 

3.  Transmit  and  cause  to  be  delivered  not  less  than  (Amendments  1S73-4,  20)  so  as  to  read  like  the  text  with 

ten  copies  to  each  election  board  in  the  county;  the  exception  that  it  did  not  have  the  proviso  in  the 

5.  Transmit  to  the   State    library    and    Mercantile  sixth  subdivision. 

library  of  San  Francisco  one  copy  each;  (b)  The  original  section  had  the  word  "primary" 

6.  Deliver  one  copy  to  each  elector' of  the  county     Instead  of  "  prima  facie." 


1130-1144  POLITICAL  CODE. 

2.  No  precinct  must  be  established,  nor  must  the  boundaries  of  one  already 
established  be  altered,  within  thirty  days  next  preceding  a  general  or  judicial 
election. 

1131.  Board  to  designate  place  for  holding  election,  and  offices  to  he  filled. 

Sec.  1131.  The  board  must,  at  least  fifteen  days  prior  to  an  election,  issue 
its  order  appointing  boards  of  election,  designating  the  house  or  place 
within  the  precinct  where  the  election  must  be  held,  and  the  oifices  to  be  filled, 
naming  and  numbering,  in  numerical  order,  commencing  with  number  one,  the 
offices  to  be  filled,  unexpired  terms  being  lastly  designated.  [Amendment, 
approved  March  30,  1874;  Amendments  1873-4,  21;  took  effect  July  6,  1874.'*^ 

1132.  When  polling  places  not  designated  by  supervisors. 

Sec.  1132.  If  the  board  fail  to  designate  the  house  or  place  for  holding  the 
election,  or  if  it  cannot  be  held  at  the  house  or  place  designated,  the  justices  of 
the  peace  residing  in  the  precinct,  must  meet  two  days  before  the  election,  and 
by  an  order,  under  their  hand  (copies  of  which  they  must  at  once  post  in  three 
public  places  in  the  precinct),  designate  the  house  or  place.  In  the  city  and 
county  of  San  Francisco,  any  three  of  the  justices  of  the  peace  may  discharge 
the  duties  imposed  by  this  section,  at  least  eighteen  hours  prior  to  the  opening 
of  the  polls.  [Amendment,  approved  March  30,  1874;  Amendments  1873-4,  21; 
took  effect  July  6,  1874.'"^ 

CHAPTER  y. 

BOAEDS   OF   ELECTION. 

1142.  Boards  of  election,  how  appointed. 

Sec.  1142.  When  an  election  is  ordered,  the  board  of  supervisors  must  ap- 
point, for  each  precinct,  from  the  electors  thereof,  one  inspector  and  two 
judges,  who  constitute  a  board  of  election  for  such  precinct;  and  in  the  city 
and  county  of  San  Francisco  the  board  of  supervisors  must  also,  j)rior  to  the 
election  day,  appoint  for  each  precinct,  from  the  electors  thereof,  an  additional 
inspector  and  tw^o  additional  judges,  who,  with  the  original  inspector  and 
judges,  shall  canvass  the  votes  for  such  precinct,  and  who  must  be  present  at 
the  closing  of  the  polls,  otherwise  the  board  of  election  must  appoint  the 
additional  insi^ector  and  judges,  or  supply  the  j)lace  of  an  absent  member 
thereof.  The  original  and  additional  inspectors  and  judges  shall  thenceforth 
constitute  the  board  of  election,  the  members  relieving  each  other  in  the  duties 
of  canvassing  the  ballots,  which  may  be  conducted  by  at  least  half  of  the  whole 
number;  but  the  final  certificates  shall  be  signed  by  a  majority  of  the  whole. 
[Amendment,  approved  2Iarch  oQ ,  1874;  Amendments  1873-4,  21;  took  effect  July 
6,  1874.''' 

1143.  Judges  not  to  he  of  same  political  party . 

Sec.  1143.  The  judges  appointed  must  not  be  members  of  the  same  political 
part^^ 

1144.  Failure  to  appoint  hoard  of  election. 

Sec.  1144.  If  the  board  of  siipervisors  fail  to  appoint  the  board  of  election,  or 
the  members  ai:)pointed  do  not  attend  at  the  oi)ening  of  the  polls  on  the  morn- 
ing of  the  election,  the  electors  of  the  precinct  present  at  that  hour  may  appoint 


(a)  Original  Bection :  fence  alone;  but  used  the  words  "residing  therein" 
Sec.  liai.  The  board  nrniRt,  in  its  order  appointing  instead  of  "residing  in  the  precinct." 

boards  of  election,  des^lguate  the  house  or  place  within  (c)  The  original  sentence  consisted  only  of  the  flrat 

the  precinct  where  the  election  aiust  be  held.  clause  down  to  and  including  the  words  "  a  board  of 

(b)  The  original  section  consisted  of  the  first  sen-  election  for  such  precinct." 

192 


ELECTIONS.  1144-llGO 

the  board,  or  supply  the  place  of  an  absent  member  thereof.     [Amendmeyit , 
approved  March  30,  1874;  Amendments  1873-4,  22j  took  effect  July  G,  1874.^''> 

1145.  Inspectors  of  election,  their  powers. 

Sec.  1145.  The  inspector  is  chairman  of  the  election  board,  and  may: 

1.  Administer  all  oaths  required  in  the  progress  of  an  election; 

2.  Api^oint  judges  and  clerks,  if,  during  the  progress  of  the  election,  auy 
judge  or  clerk  ceases  to  act. 

1146.  Judges  and  clerks  may  administer  oaths. 

Sec.  1146.  Any  member  of  the  board,  or  either  clerk  thereof,  may  administer 
and  certify  oaths  required  to  be  administered  during  the  progress  of  an  election. 

U47.  Clerks. 

Sec.  1147.  The  board  of  election  for  each  precinct  must,  before  opening  the 
polls,  appoint  two  persons  to  act  as  clerks  of  election. 

1148.  Board  and  clerks  to  be  sivorn. 

Sec.  1148.  Before  oj^ening  the  polls,  each  member  of  the  board  and  each 
clerk  must  take  and  subscribe  an  oath  to  faithfully  perform  the  duties  imposed 
upon  them  by  law.  Any  elector  of  the  townshijj  may  administer  and  certify 
such  oath. 

1149.  Board  to  jyost  copies  of  great  register. 

Sec.  1149.  Before  opening  the  polls  the  board  must  post,  in  some  separate 
convenienl:  places,  easy  of  access,  not  less  than  four  printed  copies  of  the  gi-eat 
register  of  the  county,  as  last  printed,  except  in  the  city  and  county  of  San 
Francisco,  wherein  not  less  than  four  jDiinted  coj)ies  of  the  register  of  the  ward 
shall  be  so  posted.  [Amendment,  approved  March  30,  1874;  Amendments  1873-4, 
22;  took  effect  July  6,  1874.<'» 

1150.  Copies  not  to  he  torn  nor  defaced. 

Sec.  1150.  The  copies  so  posted  must  be  maintained  during  the  whole  time 
of  voting,  and  must  not  in  an}'  manner  be  torn  or  defaced. 

[In  Napa  county  copies  of  the  great  register  are  dispensed  with  except  at 
general  or  judicial  elections  provided  for  by  sections  1041  and  1042  of  this 
code,  by  act  of  March  20,  1874;  1873-4,  515.  In  Sacramento  county  a  new 
great  register  was  ordered  to  be  provided  by  act  of  March  30,  1874;  1873-4, 
795.] 

CHAPTER  VI. 

OPENING   AND   CLOSING   THE  POLLS. 

1160.  Time  of  opening  and  closing  polls. 

Sec.  IIGO.  The  polls  must  be  opened  at  one  hour  after  sunrise  on  the  morn- 
ing of  the  election,  and  must  be  kept  open  until  sunset,  when  the  same  must 
be  closed,  except  in  the  city  and  county  of  San  Francisco,  wherein  the  polls 
must  be  opened  at  sunrise  and  be  kept  open  continuously  until  six  o'clock  and 
thirty  minutes  of  the  evening  of  the  same  day,  when  the  same  shall  be  closed. 
[Ameyidment,  approved  March  %,  1876;  Amendments  1875-6,  25;  took  eff^ect  from 
passage.'-"'' 

(a)  Original  section:  than  foiir  printed  copies  of  the  great  register  of  the 

Sec.  1144.  If  the  board  fails  to  appoint  the  election  couuty,  as  last  printed. 

board,  or  the  members  appointed  do  not  attend  at  eight  (c)   Original  section: 

o'clock  .4.  M.  on  the  morning  of  the  election,  the  elect-  Sf.c.  IIOU    The  polls  must  be  opened  at  eight  o'clock 

orsof  the  precinct  present  at  that  hour  may  appoint  on  the  morning  of  election,  and  except  as  provided  in 

the  board,  or  supply  the  place  of  an  absent  member  the  next  section,  must  be  kept  open  until  sunset, 

thereof.  It  was  previously  amended  by  act  of  March  30,  1874 

{h)  Original  section:  (Amendments  1873-4,  22)  so  as  to  read  like  the  amend- 

Sec.  1149.  Before  opening  the  polls,  the  board  must  ment  in  the  text  down  to  the  word  "  except.," 
post,  in  some  convenient  place  easy  of  access,  not  less 


13  193      ..»v^-  V 

if 


fivon 


CR^^^ 


1161-1174 


POLITICAL  CODE. 


[Sec.  1161^*'  "was  repealed  by  act  ai^proved  March  30,  1874;  Amendments 
1873-4,  23;  took  effect  July  6,  1874.] 

1162.  Ballot-box  to  he  exhibited. 

Sec.  11G2.  Before  receiving  any  ballots  the  board  must,  in  tlie  presence  of 
any  persons  assembled  at  the  polling  place,  open  and  exhibit  and  close  the 
ballot-box;  and  thereafter  it  must  not  be  removed  from  the  polling  place  or 
presence  of  the  bystanders  until  all  the  ballots  are  counted,  nor  must  it  be 
opened  until  after  the  jjolls  are  finally  closed. 

1163.  Proclamation  at  opening  the  polls. 

Sec.  11G3.  Before  the  board  receive  any  ballots  they  must  cause  it  to  be  pro- 
claimed aloud  at  the  place  of  election  that  the  polls  are  open. 

1164.  Proclamation  at  closing  the  polls. 

Sec.  11G4,  "When  the  polls  are  closed  that  fact  must  be  proclaimed  aloud  at 
the  place  of  election;  and  after  such  proclamation  no  ballots  must  be  received. 


CHAPTEE  VII. 


POLL  LISTS. 


1174.  Form  of  poll  lists  and  tally  lists. 

Sec.  1174.  The  following  is  the  form  of  poll  lists  and  tally  lists  to  be  kept  by 
boards  and  clerks  of  election : 


POLL    LISTS 


Of  the  election  held  in  the  precinct  of ,  in  the  county  of 

day  of ,  in  the  year  a.  d.  one  thousand  eight  hundred  and 


,  on  the 


A.  B.,  C.  D.,  and  E.  F.,  judges,  and  G.  H.  and  J.  K.,  clerks  of  said  election, 
-were  respectively  sworn  (or  affirmed),  as  the  law  directs,  previous  to  their  enter- 
ing on  the  duties  of  their  respective  offices. 


NUMBER    AND    NAME    OF    ELECTORS    VOTING. 


No. 

Name. 

No. 

Name. 

1 
2 

A.  B. 
C.  D. 

3 
4 

E.  F. 
G.  H. 

We  hereby  certify  that  the  number  of  electors  voting  at  this  election  amounts 


to 


Attest: 


A.  B., 

G.  H.,  C.  D., 

J.  K.,  E.  F., 

Clerks.  Board  of  Election. 

TALLY    LISTS. 

Names  of  persons  voted  for,  and  for  what  office,  containing  the  number  of 
votes  given  for  each  candidate : 


Representative  in  Congress. 

Members  of  the  Legislature. 

Senate. 

Assoiii1)ly. 

We  hereby  certify  that  A.  B.  had  votes  for  governor,  and  C.  D.  had 

ur  at 

194 


(a)  Orifpnal  section: 

Sec.  1101.  The  board  may  close  the  polls  forouc  liour  at  auy  time  during  the  day  before  three  o'clock  p.M 


ELECTIONS.  .  1174-1191 

votes  for  governor;   tliat  E.  F.  had votes  for  representative  in  con- 
gress, etc. 
^  A.  B., 

G.  H.,  C.  D., 

J.  K.,  E.  F., 

Clerks.  Boartl  of  Electiou. 

[Amendment,  approved  March  30,  1874;  Amendments  1873-4,  23;   took  effect 
July  6,  1874.'^) 
1175.    Want  of  form  not  to  vitiate. 

Sec.  1175.  No  list,  tally,  paper,  or  certificate  returned  from  any  election 
must  be  set  aside  or  rejected  for  want  of  form,  nor  on  account  of  its  not  being 
strictly  in  accordance  with  the  directions  of  this  title,  if  it  can  be  satisfactorily 
understood. 

CHAPTER  VIII. 

ELECTION  TICKETS  AND   BALLOTS. 

1185.  Ticket  defined. 

Sec.  1185.  A  ticket  is  a  paj)er  upon  which  is  written  or  printed  the  names  of 
the  persons  for  whom  the  elector  intends  to  vote,  with  a  designation  of  the 
office  to  which  each  person  so  named  is  intended  by  him  to  be  chosen. 

1186.  Ballot  defined. 

Sec.  1186.  A  ballot  is  a  ticket  folded  in  such  a  manner  that  nothing  written 
or  printed  thereon  can  be  seen. 

1187.  Tickets  must  be  uniform. 

Sec.  1187.  Every  ticket  must  be  of  paper  uniform  in  size,  color,  weight, 
texture  and  appearance. 

1188.  Secretary  of  state  to  keep  paper  for  tickets. 

Sec.  1188.  The  secretary  of  state  must  provide  and  keep  constantly  on  hand 
a  sufficient  quantity  of  jjaper,  uniform  in  color,  weight,  texture  and  appearance, 
without  marks  of  any  kind  thereon,  to  supply  the  demand  for  jiaj^er  for  tickets. 

1189.  3Iast  supply  such  paper  to  any  person  on  application. 

Sec  1189.  He  must,  upon  paj'ment  of  the  cost  thereof,  and  ten  per  cent. 
profit,  furnish  such  paper  to  every  person  who  may  apj^ly  therefor  and  who 
makes  and  files  with  him  an  affidavit  that  such  paper  is  to  be  used  in  providing 
tickets  to  be  used  as  ballots  at  any  election  next  to  ensue. 

1190.  Disposition  of  money  collected  from  sale  of  paper. 

Sec  1190.  The  sum  collected  b}^  him  for  imper  so  sold  must  be  paid  into  the 
state  treasury;  and  ten  per  cent,  of  such  sum  must  be  credited  to  a  fund  to  be 
kept  in  the  treasury',  and  known  as  the  "Election  Reward  Fund." 

1191.  Form  of  ballot. 

Sec  1191.  No  ticket  must  be  used  at  any  election,  or  circulated  on  the  day  of 
election,  unless: 

1.  It  is  written  or  printed  on  paper  furnislied  by  the  secretary  of  state,  or 
upon  paper  in  every  respect  precisely  like  such  jDaper; 

2.  It  is  five  inches  in  width,  or  within  one  fourth  of  an  inch  of  such  width. 
If  not  more  than  fifty  offices  are  designated  to  be  filled,  it  is  twelve  inches  in 
length,  or  within  one  half  of  an  inch  of  such  length.  If  more  than  fifty  offices, 
and  not  more  than  eighty  offices,  are  designated  to  be  filled,  it  is  eighteen 
inches  in  length,  or  within  one  half  of  an  inch  of  such  length.  If  more  than 
eighty  offices  are  designated  to  be  filled,  it  is  twenty-four  Jnches  in  length,  or 
within  one  half  of  an  inch  of  such  length; 


(a)  The  original  section  did  not  have  the  words  "  tally  lists." 

195 


I 


1191-1195  POLITICAL  CODE. 

3.  If  printed,  the  names  of  the  persons  voted  for,  and  the  offices  designated, 
are  j^rinted  in  black  ink,  and  in  long  primer  capitals — the  names  of  the  offices 
in  small  capitals,  and  of  the  persons  in  large  capitals — and  both  without  spaces, 
except  between  the  different  words  or  initials  in  each  line,  and  between  the 
numbers  and  initials; 

•4.  If  printed,  the  same  margin  is  left  above  the  printed  matter  as  below  it; 

5.  If  printed,  the  lines  are  straight,  and  the  matter  double  leaded  with  six  to 
pica  leads.  The  word  "  For"  comprises  the  top  line,  the  margins  both  sides  of 
it  being  equal  in  size.  The  line  after  the  top  one  commences  with  the  figure  1, 
then  follows  immediately  on  the  same  line  the  name  of  the  first  office  designated 
by  the  board  of  supervisors  in  its  order,  issued  under  section  1131,  and  lastly, 
on  the  same  line,  the  name  of  the  person  voted  for.  Each  subsequent  line 
commences  with  the  figure  next  in  numerical  order,  and  such  number  is  in  like 
manner  immediately  followed  by  the  name  of  the  office  designated,  and  the 
l)erson  voted  for;  so  that  the  offices  shall  appear  upon  the  ticket  in  the  order 
designated  by  the  board  of  suj)ervisors,  and  be  numbered  in  numerical  order, 
commencing  with  the  number  one.  The  numbers  are  in  a  straight  line  from 
top  to  bottom,  and  are  within  one  quarter  of  an  inch  of  the  left-hand  edge  of 
the  ticket;  so  that  the  blank  space  for  substituted  names  shall  be  on  the  right- 
hand  side  of  the  ticket.  The  ticket  shall  be  substantially  in  the  following- 
form  : 

For 

1.  STATE  SENATOR,   FEANK   COWPER. 

2.  STATE    SENATOR,    PHILIP    ROSS. 

3.  MEMBER    OF    ASSEMBLY,    A.     S.    WARDEN. 

4.  MEMBER    OF    ASSEMBLY,    WASHINGTON    SWIFT. 

5.  MEMBER    OF    ASSEMBLY,    CALEB    T.    HOLLIDAY. 

[Amendme^it,  approved  March  30,  1874;  Amendments  1873-4,  24;  took  effect 
July  6,  1874.^^^' 

1192.  BaUofs  not  to  be  given  to  any  person  within  certain  limits. 

Sec.  119^.  No  ticket  or  ballot  must,  on  the  day  of  election,  be  given  or 
delivered  to  or  received  by  any  person,  except  the  inspector,  or  a  judge  acting 
as  ins]Dector,  within  one  hundred  feet  of  the  polling  place. 

1193.  Tickets  and  ballots  not  to  be  folded  or  unfolded  ivithin  certain  limits. 

Sec.  1193.  No  person  must,  on  the  day  of  election,  fold  any  ticket  or  unfold 
any  ballot  which  he  intends  to  use  in  voting,  Avithin  one  huhdred  feet  of  the 
polling  place. 

1194.  Contents  of  tickets  or  ballots  not  to  be  exhibited  within  certain  limits. 

Sec  1194.  No  person  must,  on  the  day  of  election,  within  one  hundred  feet 
of  the  polling  place,  exhibit  to  another,  in  any  manner  by  which  the  contents 
thereof  may  become  known,  any  ticket  or  ballot  which  he  intends  to  use  in 
voting. 

1195.  Persons  not  to  be  asked  to  disclose  contents  of  ticket  or  ballot. 

Sec.  1195.  No  person  must,  on  the  day  of  election,  within  one  hundred  feet 
of  the  polling  place,  request  another  person  to  exhibit  or  disclose  the  contents 
of  any  ticket  or  ballot  which  such  other  person  intends  to  use  in  voting. 

(a)  Original  seftion:  ■without  spaces,  except  between  the  different  words  or 

Hr.c.  1191.  No  lieket  must  be  used  at  any  election,  or  initials  in  each  line;  4.  If  printed,  the  same  margin  is 

circulated  cm  the  day  of  election,  unlcFB:  1.  It  is  writ-  left  above  tlie  priuted  matter  as  below  it   and  the  side 

ten  or  i>rinted  on  paper  furnished  liy  the  Fecretary  of  marcins  are  equal  in  size;  o.  If  jirlnted,  the  lines  are 

fctatfc,  or  upon  j-ajifcr  in  every  respect  jjrecisely  like  huch  straight,  and  the  luatter  sint,'le  leaded;  (i.  If  written, 

paper;  2.  It  is  four  inches  in  width  and  twelve  inches  the  matter  is  so  written,  that  no  sign  thereof  appears 

in  length,  or  within  one  eighth  of  an  inch  of  such  size;  when  the  paper  is  folded:  and  7.  It  is  fri  e  from  every 

:{.  If  printed,  the  nnines  of  the  persons  voted  for  and  marl:,  character,  or  device  or  thing  that  would  enable 

the  office  designated  are  printed  in  black  ink  and  in  any  person  to   distinguish  it  by  the  back,  or,  when 

long  primer  capit:-l8— tho  name  of  the  ollico  in  small  folded,  from  any  other  legal  ticket  or  ballot, 
capitals,  and  of  the  person  in  large  caijitals— and  both 

196 


ELECTIONS.  1196-1204 

1196.  Ballots  to  have  no  marks  on  outside. 

Sec.  1196.  No  ballot  must  be  used  at  any  election,  or  circulated  on  the  day 
of  any  election,  having  any  mark  or  thing  on  the  back  or  outside  thereof 
whereby  it  might  be  distinguished  from  any  other  ballot  legally  used  on  the 
same  day. 

1197.  Ballot  to  have  no  marks  by  ivhicli  it  can  he  told  who  voted  it. 

Sec.  1197.  No  ballot  or  ticket  must  be  used  or  circulated  on  the  day  of  any 
election,  having  any  mark  or  thing  thereon  by  or  from  which  it  can  be  ascer- 
tained what  persons,  or  what  class  of  persons,  used  or  voted  it,  or  at  what  time 
in  the  day  such  ballot  was  voted  or  used.  [Amendment,  approved  March  26, 
1874;  Amendments  1873-4,  73;  took  effect  July  6,  1874."" 

1198.  Tickets,  how  to  he  folded. 

Sec.  1198.  Every  ticket,  when  used  as  a  ballot,  must  be  folded  crosswise  from 
the  centre,  and  as  follows:  If  twelve  inches  long,  four  times;  if  eighteen  inches 
long,  five  times;  and  if  twenty-four  inches  long,  five  times,  and  must  be  j)ressed 
flat.  [Amendment,  approved  March '^^,1^1 4:]  Amendments  1813-4:,  26;  took  effect 
July  6,  1874.^*" 

1199.  Tickets  not  to  be  folded  to  indicate  contents. 

Sec.  1199.  No  ticket  must  be  folded  in  a  manner  to  indicate  its  contents  when 
used  as  a  ballot.  « 

1200.  Tickets  folded  together  to  be  rejected. 

Sec.  1200.  If  in  the  ballot-box  two  tickets  are  found  folded  together  in  the 
foi-m  of  a  ballot,  they  must  both  be  rejected. 

1201.  Ballots  not  to  be  rejected  for  obscurity  in  name  of  person  or  office. 

Sec.  1201.  No  ballot  or  part  thereof  must  be  rejected  by  reason  of  any 
obscurity  therein  in  relation  to  the  name  of  the  person  voted  for  or  the  designa- 
tion of  the  office,  if  the  board,  from  an  inspection  of  the  ballot,  can  determine 
the  j)erson  voted  for  and  the  office  intended . 

1202.  When  more  persons  designated  than  to  he  chosen. 

Sec.  1202.  If  the  names  of  more  persons  are  designated  on  any  ballot  found 
in  the  ballot-box  for  the  same  office  than  are  to  be  chosen  for  such  office,  then, 
except  in  the  cases  provided  for  in  the  next  section,  all  the  names  designated 
for  such  offices  must  be  rejected,  and  the  fact  of  such  rejection,  and  the  reasons 
therefor,  must  at  the  time  of  such  rejection  be  noted  on  the  ballot  and  signed 
by  a  majority  of  the  election  board. 

1203.  Written  and  printed  names  for  the  same  offce,  ivhich  to  be  rejected. 

Sec.  1203.  When  upon  a  ballot  found  in  any  ballot-box  a  printed  name  and  a 
name  written  with  ink  or  with  pencil  appears,  and  there  are  not  so  many  persons 
to  be  chosen  for  the  office,  the  printed  name  must  be  rejected  and  the  written 
one  counted,  and  the  fact  must  at  the  time  be  noted  on  the  back  of  the  ballot, 
and  such  note  must  be  signed  by  a  majority  of  the  election  board. 

1204.  Printed  tickets  not  to  be  erased  but  by  lead-pencil  or  ink. 

Sec.  1204,  When  upon  a  ballot  found  in  any  ballot-box  a  name  has  been 
erased  and  another  substituted  therefor,  in  any  other  manner  than  by  the  use  of 
a  lead-pencil  or  common  writing  ink,  the  substituted  name  must  be  rejected, 
and  the  name  erased,  if  it  can  be  ascertained  from  an  inspection  of  the  ballot, 
must  be  counted,  and  the  fact  thereof  must  be  noted  upon  the  ballot,  and  such 
note  must  be  signed  by  a  majority  of  the  election  board. 

(a)  The  original  section  did  not   have  the  words  be  folded  crosswise  four  times  from  the  centre,  so  as 

"  used  or  voted  it."  to  make  the  ballot  three  fourths  of  one  inch  in  size, 

(6)  Original  section:  and  must  be  pressed  flat. 
Sec.  1198.  Every  ticket,  when  used  as  a  ballot,  must 

197 


1205-1225  POLITICAL  CODE. 

1205.  Two  votes  on  same  ballot  for  same  person  to  he  counted  as  one. 

Sec.  1205.  If  a  ballot  is  found  in  any  ballot-box  containing  tlie  name  of  the 
person  and  tlie  office  for  which  he  is  designated,  or  either,  two  or  more  times, 
it  must  not  for  that  reason  be  rejected;  it  must  be  counted  as  one  ballot. 

1206.  Marked  ballots  to  be  rejected. 

Sec.  1206.  When  a  ballot  found  in  any  ballot-box  bears  upon  the  outside 
thereof  any  impression,  device,  color  or  thing,  or  is  folded  in  a  manner  designed 
to  distinguish  such  ballot  from  other  legal  ballots  dejDosited  therein,  it  must, 
with  all  its  contents,  be  rejected. 

1207.  Same. 

Sec.  1207.  When  a  ballot  found  in  any  ballot-box  bears  upon  it  any  impres- 
sion, device,  color  or  thing,  or  is  folded  in  a  manner  intended  to  designate  or 
impart  knowledge  of  the  person  who  voted  such  ballot,  it  must,  with  all  its  con- 
tents, be  rejected. 

1208.  Ballots  not  conforming  to  requirements  of  law. 

Sec  1208.  "When  a  ballot  found  in  any  ballot-box  does  not  conform  to  the 
requirements  of  section  1191,  it  must,  with  all  its  contents,  be  rejected. 

120-9.  Rejected  ballots  to  be  indorsed. 

Sec.  1209.  Whenever  the  board  of  election  rejects  a  ballot,  it  must  at  the 
time  of  such  rejection  cause  to  be  made  thereon  and  signed  by  a  majority  of  the 
board  an  indorsement  of  such  rejection  and  of  the  causes  thereof. 

1210.  Rejected  ballots  to  be  i^reserved. 

Sec  1210.  All  rejected  ballots  must  be  preserved  and  returned  in  the  same 
manner  as  other  ballots. 

1211.  Ballots  not  rejected  but  objected  to  must  be  indorsed. 

Sec.  1211.  Whenever  a  question  arises  in  the  board  as  to  the  legality  of  a 
ballot,  or  any  jjart  thereof,  and  the  board  decide  in  favor  of  the  legality,  such 
action,  together  with  a  concise  statement  of  the  facts  that  gave  rise  to  the  objec- 
tion, must  be  indorsed  upon  the  ballot,  and  signed  by  a  majority  of  the  board. 

1212.  Ballots  not  in  compliance  ivith  law  not  to  be  received. 

Sec.  1212.  The  board  must  refuse  to  receive  or  to  allow  to  be  deposited  in 
the  ballot-box  any  ballot  offered  if  it  is  apparent  that  it  is  not  in  compliance 
with  the  provisions  of  this  chajiter. 

CHAPTEK  IX. 

VOTING  AND   CHAXLENGES. 

1224.  Voting,  token  to  commence  and  continue. 

Skc  1224.  Voting  may  commence  as  soon  as  the  polls  are  oj)ened,  and  may 
be  continued  during  all  the  time  the  polls  remain  open. 

1225.  Manner  of  voting . 

Sec  1225.  The  person  offering  to  vote  must  hand  his  ballot  to  the  inspector, 
or  to  one  of  the  judges  acting  as  inspector,  and  announce  his  name  and  the 
number  affixed  to  it  on  the  printed  copy  of  the  register,  if  his  name  is  thereon; 
provided,  that  in  incorporated  towns  and  cities  the  said  person  voting  shall  also 
give  the  name  of  the  street,  avenue,  or  location  of  his  residence,  and  the  num- 
ber thereof,  if  it  be  numbered,  or  such  clear  and  definite  description  of  the 
place  of  such  residence  as  shall  definitely  fix  the  same.  [Amendment,  ajyproved 
Aprils,  1870;  Amendments  181 5~(j,  2G;  took  effect  from  passage. ^^^ 

(a)  Original  Bfotion:  ap  inspector,  and  nmidiinre  his  name  and  the  number 

Snr.  122.5.  The  jxTKon  offering  to  vote  niURt  hand  his  allixcd  to  it  on  tlie  ijrinted  copy  of  the  regiBter,  If  Wb 
ballot  to  the  iuBpector,  or  to  one  of  the  judges  acting     name  Ib  thereon. 

198 


ELECTIONS.  1226-1232 

1226.  Announcement  of  voter's  name. 

Sec.  122G.  The  inspector,  or  judge  acting  as  such,  must  receive  the  ballot, 
and  before  depositing  it  in  the  ballot-box,  must,  in  an  audible  tone  of  voice, 
announce  the  name  and  register  number  (if  there  be  one),  provided,  that  in  in- 
cor^Dorated  towns  and  cities  the  said  inspector,  or  judge  acting  as  such,  shall 
also  announce  the  residence  of  the  person  voting,  and  the  same  shall  be  re- 
corded on  the  poll  list  by  the  poll  clerk.  [Amendiuent,  approved  April  3,  187G; 
Amendments  1875-6,  26;  took  e§^ect  from  passage y^ 

1227.  Putting  ballot  in  box. 

Sec.  1227.  If  the  name  be  found  on  the  copy  of  the  great  register,  or  ward 
register,  or  if  the  party  produce  and  file  with  the  board  an  uncanceled  ceiiifi- 
cate  of  registration  on  the  great  register  of  the  county,  and  the  vote  is  not  re- 
jected upon  a  challenge  taken,  the  inspector,  or  judge  acting  as  such,  must,  in 
the  presence  of  the  board  of  election,  place  the  ballot,  without  being  oi^ened 
or  examined,  in  the  ballot-box.  [Amendment,  approved  March  30,  1874;  Amend- 
ments 1873-4,  27;  took  effect  July  6,  1874."'> 

1228.  Record  that  person  has  voted,  how  kept. 

Sec.  1228.  When  the  ballot  has  been  placed  in  the  box,  one  of  the  judges 
must  write  the  word  "  voted"  op^DOsite  the  number  of  the  person  on  the  printed 
copy  of  the  register;  or,  if  the  person  voted  on  a  certificate  of  registration, 
then  upon  the  face  thereof. 

1229.  List  of  voters. 

Sec.  1229.  Each  clerk  must  keep  a  list  of  jDcrsons  voting,  and  the  name  of 
each  person  who  votes  must  be  entered  thereon  and  numbered  in  the  order  of 
voting. 

1230.  Grounds  of  challenge. 

Sec.  1230.  A  person  offering  to  vote  may  be  orally  challenged  by  any  elector  of 
the  county,  upon  either  or  all  of  the  following  grounds: 

1.  That  he  is  not  the  jDcrson  whose  name  aj^pears  on  the  register; 

2.  That  he  has  not  resided  within  the  state  for  six  months  next  preceding  the 
election ; 

8.  That  he  has  not  resided  within  the  precinct  for  thirty  days  next  preceding 
the  election; 

4.  That  he  has  before  voted  that  day; 

5.  That  he  has  been  convicted  of  a  felony  and  has  not  been  pardoned. 

1231.  Proceedings  on  challenge  for  want  of  identity. 

Sec.  1231.  If  the  challenge  is  on  the  ground  that  he  is  not  the  person  whose 
name  appears  on  the  great  register,  the  inspector  must  tender  him  the  following 
oath: 

"  You  do  swear  (or  affirm)  that  you  are  the  person  whose  name  is  entered  on 
the  great  register," 

1232.  Proceedings  on  challenge  for  non-residence. 

Sec.  1232.  If  the  challenge  is  on  the  ground  that  he  has  not  resided  in  the 
state  for  six  months  next  preceding  the  election,  the  person  challenged  must  be 
sworn  to  answer  questions;  and  after  he  is  sworn  the  following  questions  must 
be  propounded  to  him  by  the  inspector: 

1.  Have  you  resided  in  this  state  for  six  months  immediately  i^receding  this 
election? 


(a)  Original  section:  the  name  and  register  number  (if  there  be  one)  of  the 

Sec.  1226.  The  inspector,  or  judge  acting  as  such,  person  voting, 

must  receive  the  ballot,  and  before  depositing  it  in  the  (b)  The  original  section  did  not  have  the  words  "  or 

ballot-boi  must,  in  au  audible  tone  of  voice,  announce  ward  register." 

199 


1232-1239  POLITICAL  CODE. 

2.  Have  j^ou  been  absent  from  this  state  within  the  six  months  immediately- 
preceding  this  election?     If  yes,  then: 

3.  When  you  left,  did  you  leave  for  a  temporary  purpose,  with  the  design  of 
returning,  or  for  the  purj^ose  of  remaining  away? 

4.  Did  you  while  absent  regard  this  state  as  your  home  ? 

5.  Did  you  while  absent  vote  in  any  other  state? 

And  such  other  questions  as  may  be  necessary  to  a  determination  of  the  chal- 
lenge. 

1233.  Same,  on  challenge  for  non-residence  in  precinct. 

Sec  1233.  If  the  challenge  is  on  the  ground  that  he  has  not  resided  in  the 
precinct  for  thirty  days  next  preceding  the  election,  the  person  challenged  must 
be  sworn  to  answer  questions;  and  after  he  is  sworn  the  following  questions 
must  be  propounded  to  him  by  the  inspector: 

1.  When  did  you  last  come  into  this  election  precinct? 

2.  "When  you  came  into  this  jorecinct  did  you  come  for  a  temporary  purpose 
merely,  or  for  the  purpose  of  making  it  your  home? 

3.  Did  you  come  into  this  precinct  for  the  purpose  of  voting  here? 

And  such  other  questions  as  may  be  necessary  to  a  determination  of  the 
challenge. 

1234.  Same,  on  challenge  for  having  before  voted. 

Sec.  1234.  If  the  challenge  is  on  the  ground  that  the  person  challenged  has 
before  voted  that  day,  the  inspector  must  tender  to  the  person  challenged  this 
oath: 

"  You  do  swear  (or  affirm)  that  you  have  not  before  voted  this  day." 

1235.  Same,  on  ground  of  conviction  of  a  felony. 

Sec.  1235.  If  the  challenge  is  on  the  ground  that  the  j)erson  challenged  has 
been  convicted  of  a  felony  and  has  not  been  pardoned,  he  must  not  be  ques- 
tioned; but  the  fact  may  be  proved  by  the  production  of  an  authenticated  copy 
of  the  record,  or  by  the  oral  testimony  of  two  witnesses,  and  the  non-production 
of  a  pardon. 

1236.  Challenges,  how  determined. . 

Sec.  1236.  Challenges  upon  the  grounds  either: 

1.  That  the  person  challenged  is  not  the  person  whose  name  appears  on  the 
great  register; 

2.  That  the  party  has  before  voted  on  that  day; 

— Are  determined  in  favor  of  the  party  challenged  by  his  taking  the  oath 
tendered. 

1237.  Trial  of  challenge. 

Sec.  1237.  Challenges  for  causes  other  than  those  specified  in  the  preceding 
section  must  be  tried  and  determined  by  the  board  of  election  at  the  time  of  the 
challenge. 

1238.  If  person  refuses  to  be  sworn,  vote  to  be  rejected. 

Sec.  1238.  If  any  person  challenged  refuses  to  take  the  oaths  tendered,  or 
refuses  to  be  sworn  and  to  answer  the  questions  touching  the  matter  of  residence, 
he  must  not  be  allowed  to  vote. 

1239.  Rules  for  determining  question  of  residence. 

Sec  1239.  The  board  of  election,  in  determining  the  place  of  residence  of  any 
person,  must  be  governed  by  the  following  rules,  as  far  as  they  are  api^licable: 

1.  That  place  must  be  considered  and  held  to  be  the  residence  of  a  person  in 
which  his  habitation  is  fixed,  and  to  which,  whenever  he  is  absent,  he  has  the 
intention  of  returning; 

200 


ELECTIONS.  1239-1243 

2.  A  person  must  not  be  held  to  have  gained  or  lost  residence  by  reason  of 
his  presence  or  absence  from  a  place  while  employed  in  the  sei-vice  of  the  United 
States,  or  of  this  state,  nor  while  engaged  in  navigation,  nor  while  a  student  at 
any  institution  of  learning,  nor  while  kept  in  an  almshouse,  asylum,  or  prison; 

3.  A  person  must  not  be  held,  by  reason  of  having  moved  from  one  precinct 
to  another,  in  the  same  county,  within  thirty  days  jDrior  to  the  election,  to  have 
lost  his  residence  in  the  precinct  so  moved  from,  provided  he  was  an  elector 
therein  on  the  thirtieth  day  prior  to  such  election; 

4.  A  person  must  not  be  considered  to  have  lost  his  residence  who  leaves  his 
home  to  go  into  another  state,  or  precinct  in  this  state,  for  temporary  pui-poses 
merely,  with  the  intention  of  returning; 

5.  A  i)erson  must  not  be  considered  to  have  gained  a  residence  in  any  pre- 
cinct into  which  he  comes  for  temporarj^  purposes  merely,  without  the  intention 
of  making  such  precinct  his  home; 

6.  If  a  j)erson  remove  to  another  state  with  the  intention  of  making  it  his 
residence,  he  loses  his  residence  in  this  state; 

7.  If  a  person  remove  to  another  state  with  the  intention  of  remaining  there 
for  an  indefinite  time,  and  as  a  place  of  present  residence,  he  loses  his  residence 
in  this  state,  notwithstanding  he  entertains  an  intention  of  returning  at  some 
future  period; 

8.  The  place  where  a  man's  family  resides  must  be  held  to  be  his  residence; 
but  if  it  be  a  place  for  temporary  establishment  for  his  family,  or  for  transient 
objects,  it  is  otherwise; 

9.  If  a  man  have  a  family  fixed  in  one  place,  and  he  does  business  in  another, 
the  former  must  be  considered  his  place  of  residence;  but  any  man  haAing  a 
family,  and  who  has  taken  up  his  abode  with  the  intention  of  remaining,  and 
whose  family  does  not  so  reside  with  him,  must  be  regarded  as  a  resident  where 
he  has  so  taken  uj^  his  abode; 

10.  The  mere  intention  to  acquire  a  new  residence,  mthout  the  fact  of 
removal,  avails  nothing;  neither  does  the  fact  of  removal,  without  the  intention. 
[Amendment,  approved  March  30, 1874;  Amendments  1873-4,  26;  took  effect  July  6, 
1874.<''> 

1240.  Term  of  residence,  how  computed. 

Sec.  1240.  The  term  of  residence  must  be  computed  by  including  the  day  on 
which  the  person's  residence  commenced,  and  by  excluding  the  day  of  the 
election. 

1241.  Rules  must  he  read,  if  requested. 

Sec.  1241.  Before  administering  an  oath  to  a  person  touching  his  place  of 
residence,  the  inspector  must,  if  requested  by  any  person,  read  to  the  person 
challenged  the  rules  prescribed  by  sections  1238  and  1239. 

1242.  Proceedings  upon  determination  of  challenge. 

Sec  1242.  If  the  challenge  is  determined  against  the  person  offering  to  vote, 
the  ballot  offered  must,  without  examination,  be  returned  to  him;  if  deter- 
mined in  his  favor,  the  ballot  must  be  deposited  in  the  ballot-box. 

1243.  List  of  challenges  to  he  kept. 

Sec  1243.  The  board  must  cause  one  of  the  clerks  to  keep  a  list,  showing: 

1.  The  names  of  all  persons  challenged; 

2.  The  grounds  of  such  challenges; 

3.  The  determination  of  the  board  upon  the  challenge. 

(a)  The  original  section  had  but  nine  subdivisions,  omitting  the  one  numbered  3.  It  used  the  words  "  elec- 
tion board  "  instead  of  "  board  of  election." 

201 


1252-1256  POLITICAL  CODE. 

CHAPTEK  X. 

CANYASSING  AND   RETURNING  THE  VOTE. 

1252.  Canvm'x  to  he  public,  and  ivilhout  adjournment. 

Sec.  1252.  A.s  soon  as  the  polls  are  finally  closed  the  judges  must  immedi- 
ately i>roceed  to  canvass  the  votes  given  at  such  election.  The  canvass  must 
be  public,  in  the  presence  of  bystanders,  and  must  be  continued  without  ad- 
journment until  completed  and  the  result  thereof  is  declared. 

1253.  Cauvas!i,  how  commenced. 

Slc.  1253.  The  canvass  must  be  commenced  by  taking  out  of  the  box  the 
ballots  unopened  (excejit  so  far  as  to  ascertain  whether  each  ballot  is  single), 
and  counting  the  same  to  ascertain  whether  the  number  of  ballots  coiTesponds 
with  the  number  of  names  on  the  list  of  voters  kept  by  the  clerks.  In  the  city 
and  county  of  San  Francisco,  at  the  closing  of  the  jjolls,  the  inspector  must 
administer  to  the  additional  members  of  the  board  of  canvassers,  the  oath  pre- 
scribed in  section  1148,  and  likewise  to  two  clerks  appointed  by  such  additional 
members.  He  must  then  proceed  to  take  out  of  the  box  the  ballots,  unopened, 
one  at  a  time,  numbering  them  on  the  backs  in  numerical  order,  commencing 
with  number  one,  and  writing  with  ink  the  initials  of  his  own  name  upon  the 
back  of  each  ballot  as  taken  out.  He  shall  pass  each  ballot,  as  soon  as  thus 
indorsed,  to  the  additional  inspector,  who  must,  in  like  manner,  write  thereon 
the  initials  of  his  own  name,  so  that  each  ballot  can  be  subsequently  identified 
by  either  or  both  such  inspectors.  [Amendment,  approved  March  30,  1874; 
Amendments  1873-4,  28;  took  effect  July  6,  1874.'"' 

1254.  Proceedings  where  ballots  folded  together. 

Shc.  1254.  If  two  or  more  sej)arate  ballots  are  found  so  folded  together  as  to 
present  the  appearance  of  a  single  ballot,  they  must  be  laid  aside  until  the 
count  of  the  ballots  is  completed;  then,  if  upon  a  comparison  of  the  count 
with  the  numV)er  of  names  of  electors  on  the  lists  which  have  been  kept  by  the 
clerks,  it  api)ears  that  the  two  ballots  thus  folded  together  were  cast  by  one 
elector,  they  must  be  rejected.  [Amendment,  approved  March  30,  1874;  Amend- 
ments 1873^,  29;  took  effect  July  G,  1874.'^' 

1255.  ] ' roceedings  where  too  many  ballots. 

Sec.  1255.  The  ballots  must  be  immediately  rejilaced  in  the  box,  and  if  the 
ballots  in  the  box  exceed  in  number  the  names  on  the  lists,  one  of  the  jiadges 
must  jiublicly,  and  without  looking  in  the  box,  draw  out  therefrom  singly,  and 
destroy,  unopened,  a  number  of  ballots  equal  to  such  excess;  and  the  board  of 
election  must  make  a  record,  upon  the  poll  list,  of  the  number  of  ballots  so 
drawn  and  destroyed.  In  the  city  and  county  of  San  Francisco  the  numbers 
apiK-aring  on  the  backs  of  the  ballots  so  drawn,  must  likewise  be  recorded. 
\Amei)dmn\t,  a])proved  March  30,  1874;  Amendments  1873-4,  29;  took  effect  July 
G,  1874. ''> 

125G.  J'roceedings  ivhen  names  and  ballots  agree. 

Sec.  125G.  Tlie  number  of  l>allots  agreeing  or  being  thus  made  to  agree  with 
the  nu]iil)er  of  names  on  the  lists,  the  lists  must  be  signed  by  the  members  of 
the  board  and  attested  by  the  clerks,  and  the  number  of  names  thereon  must  be 
set  down  in  words  and  figures  at  the  foot  of  each  list,  and  over  the  signatures 

(a)  The  original  Bcctlon  coneiKted  of  the  flrHt  Ben-  exceed  In  number  the  names  on  the  lists  thoy  must  be 

tench  tlone.  replueed  in  the  box,  and  one  of  the  judges  must  pub- 

(ii)  The  oriifiniil  section  had  the  word  "  dcHtroyod  "  li<Iy  and  witliout  looking  in  the  box  draw  out  there- 

inittead  of  "  rejiTted."  from  singly  and  destroy  unopened  a  number  of  ballots 

(c)   OrlKlnol  f'Ttlon:  equal  to  buch  excess. 

Hec.  12i5.  If  the  ballot*  in  the  box  are  BtlU  found  to 

202 


ELECTIONS.  1256-1264 

of  the  judges  and  the  attestation  of  the  clerks,  substantially  in  the  form  pre- 
scril)ed  in  section  1174. 

1257.  Counting  the  votes. 

Sec.  1257.  After  the  lists  are  thus  signed,  the  board  must  proceed  to  count 
and  ascertain  the  number  of  votes  cast  for  each  person  voted  for.  The  ballots 
must  be  taken  out  and  Oi:)ened  by  one  of  the  members  of  the  board,  and  the 
ticket  must  be  distinctly  read. 

1258.  Tallies. 

Sec.  1258.  Each  clerk  must  -write  down  each  office  to  be  filled  and  the  name 
of  each  person  voted  for  to  fill  such  office,  and  keep  the  number  of  votes  by 
tallies  as  they  are  read  aloud. 

1259.  Tickets  to  be  strung  and  inclosed  in  sealed  envelopes. 

Sec.  1259.  The  tickets  as  soon  as  read,  or  rejected  for  illegality,  must  be 
strung  upon  a  string  by  one  of  the  judges,  and  must  not  thereafter  be  examined 
by  any  person,  but  must,  as  soon  as  all  are  counted,  be  carefully  sealed  in  a 
strong  envelope,  each  member  of  the  board  writing  his  name  across  the  seal. 

1260.  Beturn  list. 

Sec  1260.  As  soon  as  all  the  votes  are  counted  and  the  tickets  sealed  up, 
lists  must  be  attached  to  the  tally  lists  containing  the  names  of  persons 
voted  for  and  for  what  office,  and  the  number  of  votes  given  for  each  candidate, 
the  number  being  written  at  full  length,  and  such  lists  must  be  signed  by  the 
members  of  the  board  and  attested  by  the  clerks,  substantially  in  the  form  in 
section  1174  given. 

1261.  Certain  papers  to  he  sealed  up. 

Sec.  1261,  The  board  must,  before  it  adjourns,  inclose  in  a  cover  and  seal  up 
and  direct  to  the  county  clerk,  the  copy  of  the  register  upon  which  one  of  the 
judges  marked  the  word  "voted"  as  the  ballots  were  received,  all  certificates  of 
registration  received  by  it,  one  of  the  lists  of  the  persons  challenged,  one  copy 
of  the  list  of  voters,  and  one  of  the  tally  lists  and  list  attached  thereto.  [Amend- 
ment, approved  March  30, 1874;  Amendments  1873-4,  29;  took  effect  July  6, 1874.^"' 

1262.  Inspector  to  keep  certain  papers. 

Sec  1262.  The  inspector  must  retain,  open  to  the  insj)ection  of  all  electors, 
for  at  least  six  months,  the  other  list  of  voters,  tally  list,  and  list  attached 
thereto.  [Amendment,  apiproved  March  30,  1874;  Amendments  1873-4,  30;  took 
effect  Juhj  6,  1874.<*^ 

1263.  Custody  of  returns  and  ballots. 

Sec  1263.  The  sealed  packages  containing  the  register,  lists,  papers,  and 
ballots,  must  before  the  board  adjourns  be  delivered  to  one  of  its  number,  to  be 
determined  by  lot,  unless  otherwise  agreed  upon. 

1264.  Delivery  to  county  clerk — Packages,  how  sealed  up  in  San  Francisco. 

Sec  1264.  The  member  to  whom  such  packages  are  delivered,  must  without 
delay  deliver  such  packages,  without  their  having  been  opened,  to  the  county 
clerk,  nearest  postmaster  or  sworn  express  agent,  who  shall  indorse  on  such 
packages  the  name  of  the  party  delivering  them,  and  date  of  such  delivery.  If 
delivered  to  a  postmaster  or  express  agent,  such  postmaster  or  express  agent 
shall  forward  the  j)ackages  by  the  first  mail  or  express  to  the  county  seat.  In 
the  city  and  county  of  San  Francisco,  such  packages  must  be  delivered  to  the 
county  clerk  within  eighteen  hours  from  the  time  of  adjournment  of  the  board, 

(a)   Original  section:  the  lists  of  persons  challenged,  one  copy  of  the  list  of 

Skc.  1261.  The  board  must  before  it  adjourns  inclose  voters,  and  one  copy  of  the  tally  lists  and  list  attached 

in  a  cover  and  seal  up  and  direct  to  the  county  clerk  thereto. 

the  copy  of  the  gi-eat  register  upon  which  one  of  the  (b)   The  original  section  omitted  the  word  "electors" 

judges  marked  the  -word  "voted  "  as  the  ballots  were  and  had  the  words  "  copy  of  the"  before  the  words 

received,  all  certificates  of  registration  received  by  it,  "list  of  voters." 

203 


1264-1280  POLITICAL  CODE. 

which  time  of  adjourument  must  be  indorsed  upon  such  package,  and  upon 
each  poD  list,  in  ink,  and  signed  by  a  majority  of  the  members  of  such  board. 
In  the  city  and  county  of  San  Francisco  the  packages  must  be  put  up  and 
sealed  in  the  following  manner,  by  an  inspector,  and  at  least  three  others  of 
the  board,  and  be  signed  with  their  respective  signatures,  across  the  same, 
wi-itteu:  One  package  to  contain  the  ballots  only;  one  package  to  contain  one 
tally  list  and  list  attached,  only;  one  package  to  contain  the  ward  register  and 
certificates  of  registration  issued  by  the  county  clerk  after  making  up  the  ward 
register,  and  received  at  the  polls.  [Amendment,  approved  March  30,  1874; 
Amendments  1873-4,  30;  took  effect  July  0,  1874.'''> 

1265.  Clerk  to  keep  ballots  unopened. 

Slc.  12G5.  Upon  tlie  receipt  of  the  packages  the  clerk  must  file  the  one  con- 
taining ballots,  and  must  keep  it  unopened  and  unaltered  for  twelve  months, 
after  which  time,  if  there  is  not  a  contest  commenced  in  some  tribunal  ha\-ing 
jurisdiction  about  such  election,  he  must  burn  the  package,  without  opening  or 
examining  its  contents. 

1266.  When  package  containing  ballots  may  be  destroyed;  ivhen  opened. 

Sec.  1266.  If  within  twelve  months  there  is  such  a  contest  commenced,  he 
must  keep  the  package  unopened  and  unaltered  until  it  is  finally  determined, 
when  he  must,  as  provided  in  the  preceding  section,  destroy  it,  unless  such 
package  is,  by  virtue  of  an  order  of  the  tribunal  in  which  the  contest  is  pending, 
brought  and  opened  before  it,  to  the  end  that  evidence  may  be  had  of  its 
contents,  in  which  event  the  package  and  contents  are  in  the  custody  of  such 
tril)unal. 

1267.  lieturns  to  be  delivered  by  clerk  to  superxdsors. 

Sec  1267.  The  other  package  the  clerk  must  produce  before  the  board  of 
supervisors,  when  it  is  in  session  for  the  j)uri:)Ose  of  canvassing  returns. 

1268.  Copy  of  register  to  be  filed  in  county  clerk's  office. 

Sec  1268.  As  soon  as  the  returns  are  canvassed  the  clerk  must  take  the  copy 
of  the  remaster  I'etxu'ned  and  file  it  in  his  office. 


CHAPTER  XI. 

CANVASS   OF   RETURNS — DECLARATION-  OF   RESULT — COMMISSIONS  AND 
CERTIFICATES   OF   ELECTION. 

1278.  Mi'cting  of  supervisors  to  canvass  returns. 

Si.<'.  1278.  The  board  of  supenisors  of  each  'county,  except  Humboldt,  San 
Diego  and  Trinity,  must  meet  at  their  usual  place  of  meeting  on  the  first  Mon- 
day after  each  election,  to  canvass  the  returns. 

1279.  Same. 

Sec  1271).  The  board  of  suj^ervisors  of  the  counties  excepted  must  each  meet 
at  its  usual  pla<:e  of  meeting  on  the  second  Monday  after  each  election  to  can- 
vass the  returns. 

1280.  Canvass,  when  to  be  postponed. 

Si-c.  1280.  If  at  the  time  of  meeting  the  returns  from  each  i:)recinct  in  the 
county  in  which  i>olls  were  opened  have  been  received,  the  board  must  then  and 
there  i)roceed  to  canvass  the  returns;  but  if  all  the  returns  have  not  been  re- 
ceived tlie  canvass  must  be  postp(jned  from  day  to  day  until  all  of  the  returns 
are  received,  or  until  six  postponements  have  been  had. 

(a)  0rl«ii>al  wctlon:  deliver  such  packages,  without   their    having    been 

Sec.  li!t;i.  The  ineiiiber  to  whom  curb  parkagcR  are     opi.-ued,  to  the  county  clerk, 
delivered  uiuat,  before  the  next  aucceediug  Monday, 

204 


ELECTIONS,  1281-1288 

1£81.   Canvases,  hoio  made. 

Sec.  1281.  The  canvass  must  be  made  in  public,  and  by  opening  the  returns 
and  estimating  the  vote  of  such  county  or  township  for  each  person  voted  for, 
and  for  and  against  each  pi'oposition  voted  upon  at  such  election,  and  declare 
the  resitlt  thereof. 

1282.  Sfafemenf.  of  result  to  be  entered  of  record. 

Sec.  1282.  The  clerk  of  the  board  must,  as  soon  as  the  result  is  declared, 
enter  on  the  records  of  such  board  a  statement  of  such  result,  Avhich  statement 
must  show: 

1.  The  whole  number  of  votes  cast  in  the  county; 

2.  The  names  of  the  persons  voted  for,  and  the  propositions  voted  upon; 

3.  The  office  to  fill  which  each  person  was  voted  for; 

4.  The  number  of  votes  given  at  each  precinct  to  each  of  such  persons,  and 
for  and  against  each  of  such  propositions; 

5.  The  number  of  votes  given  in  the  county  to  each  of  such  persons,  and 
for  and  against  each  of  such  propositions, 

1283.  Declaration  of  result. 

Sec.  1283.  The  board  must  declare  elected  the  person  having  the  highest 
number  of  votes  given  for  each  office  to  be  filled  by  the  votes  of  a  single  county 
or  subdivision  thereof, 

1284.  Certificates'issued  by  clerk. 

Sec.  1284.  The  county  clerk  must  immediately  make  out  and  deliver  to  such 
person  (except  to  the  person  elected  county  judge)  a  certificate  of  election, 
signed  by  him,  and  authenticated  with  the  seal  of  the  county  court. 

1285.  District  returns,  how  made  up. 

Sec.  1285.  When  there  are  officers  other  than  representatives  in  congress 
voted  for,  who  are  chosen  by  the  electors  of  a  district  composed  of  two  or  more 
counties,  each  of  the  county  clerks  of  the  counties  composing  such  district,  im- 
mediately after  making  out  the  statement  specified  in  section  1282,  must  make 
a  certified  abstract  of  so  much  thereof  as  relates  to  the  election  of  such  officers. 

1286.  How  transmitted. 

Sec.  1286.  The  clerk  must  seal  up  such  abstract,  indorse  it  "  Election  Ke- 
turns,"  and  without  delay  transmit  the  same  by  mail  to  the  county  clerk  of  the 
county  w^hich  stands  first  in  alphabetical  arrangement  in  the  list  of  counties 
composing  such  district. 

1287.  Duty  of  clerk  receiving  district  returns. 

Sec.  1287.  The  clerk  to  whom  the  election  returns  of  a  district  are  made 
must,  on  the  twentieth  day  after  such  election,  or  sooner,  if  returns  from  all  the 
counties  in  the  district  have  been  received,  open  in  public  such  returns,  and 
from  them  and  the  statement  of  the  vote  for  such  officers  in  his  own  county: 

1.  Make  a  statement  of  the  vote  of  the  district  for  such  officers,  and  file  the 
same,  together  with  the  returns,  in  his  office; 

2.  Transmit  a  certified  copy  of  such  statement  to  the  secretary  of  state; 

3.  Make  out  and  deliver  or  transmit  by  mail  to  the  persons  elected  a  certifi- 
cate of  election  (unless  it  is  by  law  otherwise  provided). 

1288.  State  returns,  how  made. 

Sec.  1288.  "When  there  has  been  a  judicial  election,  or  when  there  has  been  a 
general  or  special  election  for  officers  chosen  by  the  electors  of  the  state  at 
large,  each  county  clerk,  so  soon  as  the  statement  of  the  vote  of  his  county  is 
made  out  and  entered  upon  the  records  of  the  board  of  supervisors,  must  make 
a  certified  abstract  of  so  much  thereof  as  relates  to  the  votes  given  for  persons 

205 


1288^1307  POLITICAL  CODE. 

for  offices  to  be  filletl  at  such  judicial  election  (except  justices  of  the  peace)  or 
at  such  general  or  siiecial  elections. 

1289.  Hoxo  transmitted. 

Sec.  1289.  The  clerk  must  seal  up  such  abstract,  indorse  it  "Election 
Returns,"  and  without  delay  transmit  it  by  mail  to  the  secretary  of  state. 

1290.  Duty  of  secretary  of  slate  relative  to. 

Sec  1290.  On  the  sixtieth  day  after  the  day  of  election,  or  so  soon  as  the 
returns  have  been  received  from  all  the  counties  of  the  state,  if  received  within 
that  time,  the  secretary  of  state  must  compare  and  estimate  the  vote,  and  make 
out  and  file  in  his  office  a  statement  thereof,  and  transmit  a  copy  of  such  state- 
ment to  the  governor. 

1291.  Commissions  issued  by  (jovernor. 

Sec.  1291.  Upon  receipt  of  such  coj^y  the  governor  must  issue  commissions 
to  the  persons  who  from  it  appear  to  have  received  the  highest  number  of  votes 
for  offices,  except  that  of  governor  or  lieutenant-governor,  to  be  tilled  at  such 
election. 

1292.  Returns  of  election  for  governor  and  lieutenant-governor,  liow  made. 

Sec.  1292.  When  an  election  has  been  held  to  till  the  office  of  governor  or 
lieutenant-governor,  the  clerk  of  each  county,  in  addition  to  the  abstract  made 
for  ti-ansmission  to  the  secretaiy  of  state,  must,  as  soon  as  the  statement  of  the 
vote  of  his  county  is  made  out  and  entered  upon  the  record^  of  the  board  of 
supervisors,  make  two  certified  abstracts  of  so  much  thereof  as  relates  to  the 
vote  given  for  such  officers, 

1293.  Hoxv  transmitted. 

Sec  1293.  The  clerk  must  seal  up  each  abstract  separately,  and  indorse 
thereon  "  Election  Returns  for  governor  and  lieutenant-governor." 

1294.  Same. 

Sec  1294.  He  must  at  once  direct  one  copy  to  "the  sjieaker  of  the  assembly 
next  to  meet,"  address  it  to  Sacramento,  California,  and  deposit  it,  post  paid, 
in  the  post-office. 

1295.  Some. 

Sec  129.J.  The  other  copy  he  must  direct  and  address  in  the  same  manner, 
and  at  once  deliver  it  to  a  member  elect  of  the  legislature  or  to  a  senator  who 
holds  over;  and  the  person  to  whom  it  is  so  delivered  must  deliver  it  to  the 
speaker  on  or  before  the  second  day  next  after  his  election. 

1296.  Canvass  of  returns  of  election  for  governor  and  lieutenant-governor. 

Sec.  129G.  The  returns  of  election  for  governor  and  lieutenant-governor  must 
during  the  first  week  of  the  session  be  opened,  canvassed,  and  the  result 
declared  by  the  speaker  of  the  assembly  in  presence  of  both  houses. 

1297.  Defects  inform  of  returns,  ivhen  to  fje  disregarded. 

Sec  1297.  No  declaration  of  the  result,  commission,  or  certificate  must  be 
■withheld  on  account  of  any  defect  or  informality  in  the  return  of  any  election, 
if  it  can  with  reasonable  certainty  be  ascertained  from  such  return  what  office 
is  intended,  and  who  is  elected  thereto. 

CHAPTEIl  XII. 

ELECTION   FOR   ELECTORS  OF   PRESIDENT  AND  VICE-rRESIDENT. 

1307.    Electors,  when  chosen. 

Sec.  1307.  At  the  general  election  in  each  bissextile  or  leap  year,  unless  by 
the  laws  of  the  United  States  another  time  is  fixed,  and  then  at  such  time,  there 

20G 


ELECTIONS.  1307-1316 

must  be  chosen  by  the  qualified  voters  of  the  state,  as  many  electors  of  presi- 
dent and  vice-president  of  the  United  States  as  the  state  is  then  entitled  to. 

1308.  Returns,  how  made. 

Sec.  1808.  The  clerk  of  each  county,  as  soon  as  the  statement  of  the  vote  of 
his  county  at  such  election  is  made  out  and  entered  on  the  records  of  the  board 
of  supervisors,  must  make  a  certified  abstract  of  so  much  thereof  as  relates  to 
the  vote  given  for  persons  for  electors  of  president  and  vice-president  of  the 
United  States. 

1309.  Eoxo  transmitted. 

Sec.  1309.  The  clerk  must  seal  up  such  abstract,  indorse  it  "presidential 
election  returns,"  and  without  delay  transmit  it  to  the  secretary  of  state  by 
mail  or  in  the  manner  hereinafter  prescribed. 

1310.  Blessenger,  when  clerk  may  employ. 

Sec.  1310.  If  the  county  clerk  of  any  county  has  reason  to  believe  that  the 
abstract  will  not  in  the  due  course  of  mail  reach  the  secretary  of  state  before 
the  time  fixed  by  law  for  canvassing  the  returns  of  such  election,  he  may,  with 
the  approval  of  the  county  judge,  employ  a  person  to  convey  and  deliver  such 
abstract  to  the  secretary  of  state. 

1311.  Proof  of  necessity  for  and  approval  of  appointment  of  messenger. 

Sec.  1311.  In  the  event  provided  for  in  the  preceding  section  the  clerk  must 
make  an  a£6  davit  setting  forth  the  reasons  for  his  belief  and  the  name  of  the 
person  employed  by  him,  which  alfidavit,  with  the  approval  of  the  county  judge 
indorsed  thereon,  must  be  given  to  the  person  appointed,  and  by  him,  with  the 
abstract,  must  be  delivered  to  the  secretary  of  state. 

1312.  Compensation  of  messenger. 

Sec  1312.  The  person  appointed  by  the  clerk,  after  he  delivers  the  abstract 
and  statement,  is  entitled  to  receive  as  compensation  mileage  at  the  rate  of  thirty 
cents  a  mile  from  the  county  seat  to  the  seat  of  government.  His  account  there- 
for, certified  by  the  secretary  of  state,  must  be  audited  by  the  controller  and 
paid  out  of  the  general  fund  in  the  state  treasury, 

1313.  Duties  of  secretary  of  state  relative  to  returns. 

Sec.  1313.  On  the  last  Monday  in  the  month  of  the  election,  or  as  soon  as 
the  returns  have  been  received  from  all  the  counties  in  the  state,  if  received  be- 
fore that  time,  the  secretary  of  state  must  compare  and  estimate  the  votes  given 
for  electors,  and  certify  to  the  governor  the  names  of  the  proper  number  of 
persons  having  the  highest  number  of  votes. 

1314.  Duty  of  governor. 

Sec  1314.  The  governor  must,  upon  the  receipt  of  such  certificate,  transmit 
to  each  of  such  persons  a  certificate  of  election,  and  on  or  before  the  day  of 
their  meeting  deliver  to  the  electors  a  list  of  the  names  of  electors,  and  must 
do  all  other  things  required  of  him  in  the  premises  by  any  act  of  congress  in 
force  at  the  time. 

1315.  Meeting  of  electors. 

Sec  1315.  The  electors  chosen  must  assemble  at  the  seat  of  government  on 
the  first  Wednesday  in  December  next  after  their  election,  at  two  o'clock  in  the 
afternoon. 

1316.  Vacancies  in,  how  supplied. 

Sec  1316.  In  case  of  the  death  or  absence  of  any  elector  chosen,  or  in  case 
the  mimber  of  electors  from  any  cause  be  deficient,  the  electors  then  present 
must  elect,  from  the  citizens  of  the  state,  so  many  persons  as  will  supply  such 
deficiency. 

207 


1317-1343  POLITICAL  CODE. 

1317.  Voling  by  electors,  and  7'cturns. 

Sec.  1317.  The  electors,  when  convened,  must  vote  by  ballot  for  one  person 
for  jn-esident  and  one  person  for  vice-president  of  the  United  States,  one  of 
wliom,  at  least,  is  not  an  inhabitant  of  this  state. 

1318.  Separate  ballots  for  president  and  vice-president. 

Sec.  1318.  They  must  name  in  their  ballots  the  persons  voted  for  as  president, 
and  in  distinct  ballots  the  persons  voted  for  as  vice-president. 

1319.  ^fttst  make  lists  ofjyersons  voted  for. 

Sec.  1319.  They  must  make  distinct  lists  of  all  persons  voted  for  as  president, 
and  of  all  persons  voted  for  as  vice-president,  and  of  the  number  of  votes  given 
for  each. 

1320.  Besult  to  be  transmitted  to  president  of  United  States  senate. 

Sec.  1320.  They  must  certify,  seal  up,  and  transmit  by  mail  such  lists  to  the 
seat  of  government  of  the  United  States,  directed  to  the  president  of  the 
senate. 

1321.  Compensation  of  electors. 

Sec.  13'21.  Electors  receive  the  same  pay  and  mileage  as  is  allowed  to  mem- 
bers of  the  assembly. 

1322.  How  audited  and  paid. 

Sec  1322.  Their  accounts  therefor,  certified  by  the  secretary  of  state,  must 
be  audited  by  the  controller,  who  must  draw  his  warrants  for  the  same  on  the 
treasurer,  payable  out  of  the  general  fund. 

CHAPTEE  XIII. 

ELECTIONS  FOR  MEMBERS  OF   CONGRESS. 

ARTICLE  I.  Election  for  Senatoks 1332 

II.  Election  fob  Kepbesextativks 1343 

AKTICLE  I. 

ELECTION    FOR    SENATORS. 

1332.  Elections  for  full  terms. 

Sei'.  1332.  Elections  for  senators  in  congress  for  full  terms  must  be  held  at 
the  regular  session  of  the  legislature  next  preceding  the  commencement  of  the 
term  to  be  filled. 

1333.  Elections  to  fdl  vacancirs. 

Sec  1333.  Elections  to  fill  a  vacancy  in  the  term  of  a  United  States  senator 
must  Ixj  lield  at  the  session  of  the  legislature  next  succeeding  the  occurrence  of 
such  vacancy. 

ARTICLE  II. 

ELECTIONS   FOR    REPRESENTATIVES. 

1343.    When  held. 

Sec  1343.  At  the  general  election  in  the  year  eighteen  hundred  and  seventy- 
three,  and  at  tlio  general  election  every  two  years  thereafter,  there  must  be 
elected,  for  each  congressional  district,  one  representative  to  the  congress  of 
the  United  States. 

(There  was  "  An  Act  to  fix  the  time  for  holding  elections  for  members  of  cou- 
greKH  and  rejK-al  certain  acts,"  adopted  on  April'  1,  1872;  1871-2,  910.  It  pro- 
vidrd  !(,r  the  election  of  1872  only.  The  above  section  of  the  code  is  the 
general  law  now  in  force. ) 

208 


ELECTIONS.  1344-1360 

1344.  Returns,  how  made. 

Sec.  1844.  The  clerk  of  each  county,  as  soon  as  the  statement  of  the  vote  of 
his  county  at  such  election  is  made  out  and  entered  on  the  records  of  the  board 
of  supervisors,  must  make  a  certified  abstract  of  so  much  thereof  as  relates  to 
the  vote  given  for  persons  for  representatives  to  congress. 

1345.  Hoio  transmitted. 

Sec.  1345.  The  clerk  must  seal  vq)  such  abstract,  indorse  it  "  Congressional 
Election  Returns,"  and  without  delay  transmit  it  by  mail  to  the  secretary  of 
state. 

1346.  Duty  of  secretary  of  state  relative  to. 

Sec.  1346.  On  the  sixtieth  day  after  the  day  of  election,  or  as  soon  as  the 
returns  have  been  received  from  all  the  counties  of  the  state,  if  received  within 
that  time,  the  secretary  of  state  must  compare  and  estimate  the  votes  given  for 
such  representatives,  and  certify  to  the  governor  the  person  having  the  highest 
number  of  votes  in  each  congressional  district  as  duly  elected. 

1347.  Certificates  issued  by  governor. 

Sec  1347.  The  governor  must,  upon  the  receipt  of  such  certificate,  transmit 
to  each  of  such  persons  a  certificate  of  his  election,  sealed  with  the  great  seal 
and  attested  by  the  secretary  of  state. 

CHAPTEE   XIY. 

PRIMARY  ELECTIONS. 

1357.  Resolution  to  hold  primary  election  under  election  laws. 

Sec.  1357.  Any  committee  or  body  authorized  by  the  rules  or  customs  of  a 
voluntary  political  association  or  organization,  to  call  elections  of  or  for  such 
association  or  organization,  for  any  purpose,  may,  by  resolution  adopted  at  the 
time  of  making  the  call,  elect  to  have  such  elections  conducted  in  accordance 
with  the  rules  prescribed  in  sections  1083,  1084,  1144,  1145,  1146,  1147,  1148, 
1162,  1163,  1164,  1174,  1175,  1192,  1193,  1194,  1195,  1196,  1199,  1200,  1201, 
1202,  1203,  1224,  1227,  1229,  1230,  1231,  1232,  1233,  1234,  1235,  1236,  1237, 
1238,  1239,  1240,  1241,  1242,  1252,  1253,  1254,  1255,  1256,  1257,  1258,  1259 
and  1260.  [Amendment  approved  31arch  26,  1874;  Amendments  1873-4,  74;  took 
effect  July  6,  1874.'^' 

1358.  Resolution,  form  of. 

Sec.  1358.  The  resolution  must  declare: 

1.  The  time  and  j^lace  of  holding  the  election  and  the  hours  between  which 
the  polls  are  to  be  kept  open; 

2.  The  names  of  the  persons  to  constitute  the  election  board; 

3.  The  object  of  the  election; 

4.  That  such  election  will  be  held  under  the  provisions  of  the  primary  elec- 
tion law; 

5.  The  time  and  manner  of  the  publication  of  notice  of  such  election; 

6.  The  qualifications  required  for  voters  in  addition  to  those  prescribed  by 
law. 

1359.  Notice,  form  of. 

Sec.  1359.  The  notice  of  the  election  must  be  signed  by  the  secretary  of  the 
committee  or  body,  and  must  contain  a  copy  of  the  resolution,  and  must  be 
published  as  directed  in  the  resolution. 

1360.  Challenges. 

Sec  1360,  In  addition  to  the  challenges  allowed  by  law,  any  person  offering 

(a)  The  original  section  did  not  refer  to  sections  1192, 1193, 1194, 1195,  1196  and  1199. 

14  209 


13C0-13S5  POLITICAL  CODE. 

to  vote  at  such  election  may  be  challenged  upon  the  grounds  that  be  does  not 
possess  the  other  qualiticatiuns  prescribed  in  the  resolution,  and  such  challenges 
must  be  tried  and  determined  by  the  board  of  election,  who  to  that  end  may 
administer  an  oath  to  such  persons,  and  may  ask  them  any  question  tending  to 
prove  or  disprove  the  challenge. 

1361.  yo)te  but  qualifit'il  persons  to  participate. 

Sec.  13G1.  None  but  persons  who  possess  the  qualifications  prescribed  by  law 
and  by  the  resolution  must  vote  or  participate  in  any  of  the  proceedings  at  such 
election. 

1362.  Betunis,  hoiv  made. 

Stc.  1362.  After  counting  the  votes  and  signing  the  lists  the  judges  must 
cause  the  ballots  and  one  copy  of  the  lists  to  be  delivered  to  the  secretary  sign- 
ing the  notice  of  election,  and  one  of  the  judges  must  retain  the  other  lists  for 
twenty  days  after  the  election. 

1363.  Certificates  to  be  issued  by  board  of  judges. 

Sec.  1303.  The  board  of  election  must  issue  certificates  of  election  to  all  per- 
sons who  are  chosen  to  fill  any  position  by  the  vote  of  one  jn-ecinct  alone. 

1364.  Canvass  of  returns  and  certificate  by  committee. 

Sec  130-4.  The  committee  or  body  from  which  emanated  the  resolution  call- 
ing the  election  may,  under  such  rules  as  it  adopts,  oj)en  and  canvass  the 
returns  and  issue  certificates  to  persons  chosen  to  fill  positions  by  the  voters  of 
more  than  one  precinct. 

1365.  What  pi-ovisions  of  laiv  applicable  to  these  elections. 

Sec  1305.  All  of  the  provisions  of  Title  IV,  Part  I  of  The  Penax  Code,  and 
all  the  provisions  of  the  sections  referred  to  in  the  first  section  of  this  chapter, 
are  ajiplicable  to  elections  held  under  the  provisions  of  this  chapter  from  and 
after  the  last  i^ublication  of  the  notice  mentioned  in  section  1359. 

[Title  IV,  Part  I  of  The  Penal  Code,  will  be  found  post,  13,041.] 


TITLE  III. 

(fiMsratioiu 

Chapter  I.  University  of  California 1385 

II.  State  Normal   School 1487 

III.  Public  Schoois 1517 

CHAPTER  I. 

UNIVERSITY   OF   CALIFORNIA. 
AKTici.r  I.  Gkski:al  Pbovisions  Rklatino  to  the  University 1385 

II.    E.SKOWMKNT   OK   THK    UniVKUSITY 1415 

III.  Rkoknth  of  thk  Univkusity 1425 

IV.  Skcuktahv  of  thk  HoAiiij  OF  Rkokni s 1449 

V.     \CADKMIC    SkNATK    OF   THK    UnIVKKHITY 1461 

VI .  UNivEimmr  Cai>kth 1473 

ARTICLE  I. 

OENERAL    provisions    relating    to    the    UNrVERSITV. 

1335.   Object  of  nnirersily. 

Sec.  1385.  The  university  of  California,  located  in  Alameda  county,  has  for 

210 


EDUCATION.  1385-1394 

its  object  general  instruction  and  education  in  all  the  departments  of  science, 
literature,  art,  industrial  and  professional  pursuits,  and  special  instruction  for 
the  professions  of  agriculture,  the  mechanic  arts,  mining,  military  science,  civil 
engineering,  law,  medicine,  and  commerce. 

1386.  Colleges  to  be  maivtained. 

Sec.  1386.  There  must  be  maintained  in  the  university: 

1.  A  college  of  letters; 

2.  A  college  or  colleges  of  science,  including  agriculture,  mechanics,  mining, 
engineering,  chemistry,  and  such  other  specialties  as  the  board  of  regents  may 
determine; 

3.  College  of  medicine  and  law; 

4.  Such  other  colleges  as  the  board  of  regents  may  establish.  [Amendment, 
approved  March  30,  1874;  Amendments  1873-4,  31;  took  effect  July  6,  1874.^"> 

1387.  Scope  of  college  of  letters. 

Sec.  1387.  The  college  of  letters  must  embrace  a  liberal  course  of  instruction 
in  language,  literature,  and  philosophy. 

1388.  Course  of  instruction. 

Sec.  1388.  Each  full  course  of  instruction  consists  of  its  appropriate  studies 
and  courses,  to  be  determined  by  the  board  of  regents.  [Amendment,  approved 
March  30,  1874;  Amendments  1873-4,  31;  took  effect  July  6,  1874.^''^ 

1389.  President  of  university. 

Sec.  1389.  The  president  of  the  university  is  the  executive  head  of  the  insti- 
tution in  all  its  departments,  except  as  herein  otherwise  provided. 

1390.  Duties  of  president. 

Sec  1390.  He  must,  subject  to  the  board  of  regents,  give  general  direction 
to  the  practical  affairs  of  the  several  colleges,  and  in  the  recess  of  the  board  of 
regents  may  remove  any  employee  or  subordinate  officer  not  a  member  of  any 
faculty,  and  supply  for  the  time  being  any  vacancies  thus  created;  and  until 
the  regents  otherwise  direct  he  is  charged  with  the  duties  of  one  of  the  profes- 
sorships. 

1391.  Government  and  discipline. 

Sec  1391.  The  immediate  government  of  the  several  colleges  is  intrusted  to 
their  respective  faculties,  each  of  which  must  have  its  own  organization,  regu- 
late its  own  affairs,  and  may  recommend  the  course  of  study  and  the  text-books 
to  be  used. 

1392.  Students. 

Sec  1392.  Any  resident  of  California  of  the  age  of  fourteen  years  or  uj^wards, 
of  approved  moral  character,  may  enter  himself  in  the  university  as  a  student 
at  large, 'and  receive  tuition  in  any  branches  of  instruction  at  the  time  when  the 
same  are  given  in  their  regular  course,  on  such  terms  as  the  board  of  regents 
may  prescribe. 

1393.  Fees  and  rates  of  tuition. 

Sec  1393.  An  admission  fee  and  rate  of  tuition  fixed  by  the  board  of  regents 
must  be  required  of  each  pupil,  excej)t  as  herein  otherwise  pro\'ided. 

1394.  Free  tuition,  luhen. 

Sec  1394.  As  soon  as  the  income  of  the  university  shall  permit,  admission 
and  tuition  must  be  free  to  all  residents  of  the  state;  and  the  regents  must  so 
apportion  the  representation  of  students  according  to  population  that  all  por- 
tions of  the  state  may  enjoy  equal  privileges  therein. 

(a)  The  original  section  had  the  Becond  and  third  (6)   Original  section: 

Bubdivisions  as  follows:  Sec.  138«.  Each  full  course  of  instruction  consists  of 

2.  Colleges  of  law  and  medicine ;  its  appropriate  studies,  and  must  continue  for  four 

3.  Colleges  of  arts,  as  follows:  of  agriculture,  mines  years, 
and  civil  engineering ;  and, 

211 


1395-1403  POLITICAL  CODE. 

1395.  Free  scholar sliip. 

Sec.  1395.  If  approveil  liy  the  board  of  regents,  scliolarsliips  may  be  estab- 
lisbeil  in  the  university  by  any  persons  for  the  purpose  of  private  benefaction 
or  of  afibrding  tuition  in  any  course  of  the  university,  free  from  the  ordinary 
charges,  to  any  scholar  in  the  public  schools  of  the  state  who  may  distinguish 
himself  in  study,  according  to  the  recommendation  of  his  teachers,  and  who 
passes  the  examination  required  for  the  grade  at  which  he  wishes  to  enter  the 
university. 

1396.  Colleges  may  be  affiliated  v.-ith  university. 

Si:c.  139G.  The  board  of  regents  may  affiliate  with  the  university  any  incor- 
porated college  of  medicine,  law,  or  other  special  course  of  instruction,  upon 
such  terms  as  may  be  deemed  expedient;  and  such  college  may  retain  the  con- 
trol of  its  own  proi^ei'ty,  have  its  own  board  of  txiistees,  faculties,  and  presidents, 
respectively;  and  the  students  of  such  colleges,  recommended  by  the  respective 
faculties  thereof,  may  receive  from  the  university  the  degrees  of  those  colleges. 

1397.  Annual  examination  for  degrees. 

Slc.  1397.  The  examinations  for  degrees  must  be  annual.  Students  who  have 
jja-ssed  not  less  than  a  year  as  residents  in  any  college,  academy  or  school  in 
this  state,  and  who,  after  examination  by  the  faculty  thereof,  are  recommended 
by  them  as  proficient  candidates  for  any  degree  in  any  regular  course  of  the 
university,  must  be  examined  therefor  at  the  annual  examination;  and  on  pass- 
ing ,such  examination  may  receive  the  degree  and  diploma  for  that  course,  and 
rank  as  graduates. 

1398.  Annual  examination  for  degrees. 

Sec  1398.  All  students  of  the  university  who  have  been  residents  thereat  for 
not  less  than  one  year,  and  all  graduates  thereof,  may  present  themselves  for 
(■xuminatiou  in  any  course  at  the  annual  examinations,  and,  on  passing  such 
examination,  may  receive  the  degree  and  diploma  of  that  course.  [Amendment, 
opproved  March  30,  1874;  Amendments  1873-4,  31;  took  effect  July  G,  1874.^"' 

1399.  Votes  for  conferring  degree. 

Sec.  1399.  Ui)on  such  examinations  each  professor  and  instructor  of  that 
course  may  cast  one  vote,  by  ballot,  upon  each  application  for  recommendation 
t'j  the  board  of  regents  for  a  degree. 

1400.  Degrees  to  graduates  of  affiliated  colleges. 

Sec  1400.  Graduates  of  the  College  of  California,  and  of  aiiy  incorporated 
college  aflfdiated  with  the  university,  may  receive  the  degrees  from  and  rank  as 
^.Taduates  of  the  university. 

1401.  Certificati's  (f  proficiency. 

Skc  1401.  The  l)oard  of  regents  may  also  confer  certificates  of  proficiency  in 
any  branch  of  study  upon  such  students  of  the  university  as  upon  examination 
are  found  entitled  to  the  same. 

1402.  Jjrgrees. 

Sec.  140li.  The  proper  degree  of  each  college  must  be  conferred  at  the  end  of 
the  course  upon  such  students  as,  having  completed  the  same,  are  found  pro- 
ficient therein. 

1403.  Ihgrees  in  colleges  of  letters. 

Sec  1403.  The  degree  of  bachelor  of  arts,  and  afterwards  the  degree  of  mas- 
ter of  arts,  in  usual  course,  must  1)e  conferred  upon  the  graduates  of  the  college 
of  letters. 

(a)  The  orlfrinhl  Hntioii  had  the  wordn  "  in  ony  courfic  "  iustcaU  of  "  thireof,"  and  the  word  "  other  "  before 
the  wurdH  "  cuumc  ut  the  nunual  cxuniinatiouK." 

212 


EDUCATION.  1404-1415 

1404.  System  of  manual  labor  in  connection  ivith  agricultural  college. 

Sec.  1404.  A  sj'stem  of  moderate  manual  labor  must  ho  establislied  in  con- 
nection with  the  agricultural  college,  upon  its  agricultural  and  ornamental 
grounds,  for  practical  education  in  agriculture  and  landscape  gardening. 

1405.  Sectarian,  etc.,  tests  irrohibifed. 

Sec.  1405.  No  sectarian,  political,  or  partisan  test  must  ever  be.  allowed  or 
exercised  in  the  appointment  of  regents,  or  in  the  election  of  professors,  teach- 
ers, or  other  officers  of  the  university,  or  in  the  admission  of  students  thereto, 
or  for  any  jDurpose  whatsoever;  nor  must  the  majority  of  the  board  of  regents 
be  of  any  one  religious  sect  or  of  no  religious  belief. 

An  Act  to  prohibit  the  sale  of  intoxicating  liquors  within  two  miles  of  the  university  of 

California. 

Appi-ovea  December  23,  1873;  1S73-4,  12. 

No  liquor  to  be  sold  within  two  miles  of  university. 

Section  1.  It  shall  not  be  lawful  for  any  person  or  persons  to  keep  or  expose 
for  sale,  or  sell,  or  give,  or  permit  others  to  take,  for  a  consideration,  directly  or 
indirectly,  any  malt,  spirituous,  or  other  alcoholic  liquors,  upon  or  within  two 
miles  of  the  grounds  belonging  and  adjacent  to  the  university  of  California 
in  Alameda  county. 

Penalty. 

Sec.  2.  Any  violation  of  section  first  of  this  act,  shall  be  deemed  a  misde- 
meanor, punishable  by  fine,  or  imprisonment  in  the  county  jail  of  Alameda 
county,  or  both.  The  fine  to  be  not  less  than  fifty  dollars  nor  more  than  one 
hundred  dollars;  and  the  imprisonment  to  be  not  less  than  thirty  nor  more  than 
ninety  days  for  each  offense. 

Sec.  3.  This  act  shall  take  effect  from  and  after  the  first  day  of  February, 
one  thousand  eight  hundred  and  seventy -four. 

An  Act  to  provide  a  supply  of  water  for  the  university,  and  for  the  asylum  for  the  deaf, 

dumb  and  blind. 

Approved  April  1,  1876;  1875-6,  816. 

[This  act  provided  for  the  condemnation  for  the  use  of  the  university  and 
asylum  for  the  deaf,  dumb,  and  blind,  of  any  springs  or  natural  sources  of  water 
supply  within  a  mile  and  a  half  of  the  university  grounds.] 

ARTICLE  II. 

ENDOWMENT    OF    THE    UNIVERSITY. 

1415.  Endowment. 

Sec.  1415.  The  indorsement  [endowment]  of  the  university  is: 

1.  The  proceeds  of  the  sale  of  the  seventy -two  sections  of  land  granted  to  the 
state  for  a  seminary  of  learning; 

2.  The  proceeds  of  the  ten  sections  of  land  granted  to  the  state  for  public 
buildings; 

3.  The  income  derived  fi-om  the  investments  of  the  proceeds  of  the  sale  of 
the  lands  or  of  the  scrip  therefor,  or  of  any  part  thereof,  granted  to  this  state 
for  the  endowment,  support,  and  maintenance  of  at  least  one  college  where  the 
leading  object  shall  be — without  excluding  other  scientific  and  classical  studies, 
and  including  military  tactics — to  teach  such  branches  of  learning  as  are  related 
to  agriculture  and  the  mechanic  arts; 

4.  The  income  of  the  fund  set  apart  by  "  An  Act  for  the  endowment  of  the 
university  of  California,"  approved  April  second,  eighteen  hundred  and  seventy, 
which  is  continued  in  force; 

6.  The  State  of  California,  in  its  corporate  capacity,  may  take  by  grant,  gift, 

213 


Ulo-1430  POLITICAL  CODE. 

devise,  or  bequest,  any  property  for  the  use  of  the  university,  and  hold  the 
same,  and  apply  the  funds  arising  therefrom,  through  the  regents  of  the  univer- 
sity, to  the  support  of  the  university,  as  provided  in  article  nine,  section  four, 
of  the  constitution; 

7.  The  regents  of  the  university,  in  their  corporate  capacity,  may  take,  by 
grant,  gift,  devise,  or  bequest,  any  property  for  the  use  of  the  university,  or  of 
any  college  thereof,  or  of  any  professorship,  chair,  or  scholarship  therein,  or 
for  the  libraiy,  an  observatory,  workshops,  gardens,  greenhouses,  apparatus, 
a  students'  loan  fund,  or  any  other  purpose  appropriate  to  the  university;  and 
such  property  shall  be  taken,  received,  held,  managed,  and  invested,  and  the 
proceeds  thereof  used,  bestowed,  and  applied  by  the  said  regents  for  the  pur- 
poses, provisions,  and  conditions  prescribed  by  the  respective  grant,  gift,  devise, 
or  bequest; 

8.  The  regents  of  the  univei'sity  may  invest  any  of  the  permanent  funds  of 
the  university,  which  are  now  or  hereafter  may  be  in  their  custody,  in  produc- 
tive, unincumbered  real  estate  in  this  state,  subject  to  the  power  of  the  legisla- 
ture to  control  or  change  such  investments,  excepting  such  as,  by  the  terms  of 
their  acquisition,  must  be  otherwise  invested; 

9.  If,  by  the  terms  of  any  grant,  gift,  devise,  or  bequest,  such  as  are  described 
in  the  preceding  sixth  and  seventh  subdivisions,  conditions  are  imposed  which 
are  impracticable  under  the  provisions  of  the  Civil  Code,  such  grant,  gift,  de- 
vise, or  bequest,  shall  not  thereby  fail,  but  such  conditions  shall  be  rejected,  and 
the  intent  of  the  donor  carried  out  as  near  as  may  be.  [Amei^dmejit,  approved 
March  30,  1874;  Amendments  1873^,  31;  took  effect  July  6,  1874.'''> 

AETICLE  III. 

REGENTS    OF    THE    UNIVERSITY. 

1425.  rnivey'sily  coidrolled  by  regents. 

Sec.  1425.  The  university  is  under  the  control  of  a  board  of  regents,  consist- 
ing of  twenty -two  members;  but  the  president  of  the  university,  for  the  time 
being,  shall  be  a  member  of  the  board  of  regents,  by  virtue  of  his  office. 
\Amendment,  approved  March  30,  1874;  Amendments  1873-4,  33;  took  effect  July 
6,  1874."'> 

1426.  Sixteen  regents  appointed  by  the  governor. 

Sec.  142G.  Sixteen  members  of  the  board  are  appointed  by  the  governor, 
with  the  ad\'ice  and  consent  of  the  senate.    Their  term  of  office  is  sixteen  years. 

1427.  Six  other  regents,  appointment  of. 

Sec.  1427.  Six  members  of  the  board  hold  by  virtue  of  other  offices,  as  pro- 
vided in  section  353. 

1 4  28 .    I  'd  ca  n  cies . 

Sec.  1428.  AVlienever  a  vacancy  occurs  in  the  board,  the  governor  must  ap- 
point some  jjerson  to  fill  it,  and  the  person  so  appointed  holds  for  the  re- 
mainder of  the  term. 

1429.  President  of  the  board. 

Sec.  1429.  The  governor  is  president  of  the  board. 

1430.  Quorum. 

Sec.  1430.  Sevrn  hk mbers  constitute  a  quorum  of  the  board. 

(a)  The  oriKinal   Bt-rlifjn   rlld   nfit   have   the  Blxth,  for,  or  of  any  part  thereof ,  granted  to  this  Btate  for  the 

Bcventh.  eighth  anrl  ninth  milHllvlhlrjnK.  but  it  had  a  benefit  of  agriiultiire  and  the  mechanic  arts. 
"5.  nonntiont*."    The  thir.l  whk  an  follown:  (fc)  The  original  section  did  not  have  the  Inst  clause, 

3.  The  inrouift  derived  Iroiii  the  iuvestuient  of  tho  commencing  with  the  words  "  but  the  president." 
proceeds  of  the  sale  of  the  lauds,  or  of  the  scrip  there- 

214 


EDUCATION.  1431-1434 

1431.  Regents  receive  no  compensation. 

Sec.  1431.  The  members  receive  no  compensation. 

1432.  General  powers  and  duties  of  regents. 

Sec.  1432.  The  powers  and  duties  of  the  board  of  regents  are  as  follows : 

1.  To  meet  at  such  times  and  places  as  their  rules  may  prescribe,  or  at  the 
call  of  the  president  of  the  board; 

2.  To  control  and  manage  the  university  and  its  property; 

3.  To  jDrescribe  rules  for  their  own  government,  and  for  the  government  of 
the  university; 

4.  To  adopt  and  prescribe  rules  for  the  government  and  discipline  of  the 
cadets; 

5.  To  receive,  in  the  name  of  the  state,  or  of  the  board  of  regents,  as  the  case 
may  be,  all  property  donated  to  the  university; 

6.  To  choose  a  president  of  the  university,  the  professors  and  other  officers 
and  employees  of  the  university,  prescribe  their  duties,  fix  and  provide  for  the 
j^ayment  of  their  salaries; 

7.  To  fix  the  qualifications  for  admission  to  the  benefits  of  the  university; 

8.  To  fix  the  admission  fee  and  rates  of  tuition; 

9.  To  appoint  a  secretary  and  treasurer,  prescribe  their  duties,  and  fix  and 
provide  for  the  payment  of  their  compensation; 

10.  To  remove,  at  pleasure,  any  officer,  professor  or  employee  of  the  univer- 
sity; 

11.  To  suj^ervise  the  general  courses  of  instruction,  and,  on  the  recommenda- 
tion of  the  several  faculties,  prescribe  the  authorities  and  text-books  to  be  used 
in  the  several  colleges; 

12.  To  confer  such  degTees,  and  grant  such  diplomas,  as  are  usual  in  univer- 
sities, or  as  they  deem  appropriate; 

13.  To  establish  and  maintain  a  museum; 

14.  To  establish  and  maintain  a  library; 

15.  To  take  immediate  measures  for  the  permanent  improvement  and  planting 
of  the  university  grounds; 

16.  To  keep  a  record  of  all  their  proceedings; 

17.  Through  the  president  of  the  university,  to  report  to  the  governor  the 
progress,  condition  and  wants  of  each  of  the  colleges  embraced  in  the  university; 
the  course  of  study  in  each,  the  number  of  professors  and  students,  the  amount 
of  receipts  and  disbursements,  together  with  the  nature,  cost  and  results  of  all 
important  investigations  and  experiments,  and  such  other  information  as  they 
may  deem  imjDortant.  [Amendment,  approved  Naixh  30,  1874;  Amendments 
1873-4,  33;  took  effect  July  6,  1874.'^^ 

1433.  Income  arising  from  endoivment  at  disposition  of  regents.^ 

Sec.  1433.  The  entire  income  arising  from  the  endowment  is  subject  to  the 
trusts  at  the  disposition  of  the  board  of  regents  for  the  support  of  the  univer- 
sity. 

1434.  Fund  to  be  set  apart  for  current  expenses. 

Sec  1434.  For  the  current  expenditures  of  the  university  specific  sums  of 
money  must  be  set  aside,  out  of  the  funds  at  their  disposal,  by  the  board  of 
regents,  which  are  subject  to  the  warrants  of  the  president  of  the  board,  drawn 
upon  the  treasurer  of  the  university  in  j)ursuance  of  the  orders  of  the  board  of 
regents. 

(a)  The  original  section  had  eighteen  subdivisionB,  as  are  usual  in  universities,  or  as  they  deem  appro- 

the  fifth,  twelfth  and  fifteenth  of  which  were  as  f ol-  priate ; 

lows:  15.  To  maintain  a  preparatorj-   department,  under 

5.  To  receive,  in  the  name  of  the  university  and  for  such  rules  and  regulations  as  it  may  provide,  and  to 

its  benefit,  all  property  donated  to  it;  employ  such  teachers,  and  secure  such  buildings,  by 

12.  To  confer  such  degi-ees  and  grant  such  diplomas  purchase  or  otherwise,  as  are  necessary  therefor. 

215 


1435-U50  POLITICAL  CODE. 

1435.  Funds  mm/  be  drawn  from  state  treasurer. 

Sec.  1435.  All  moneys  which  may  at  any  time  be  in  the  state  treasury, 
subject  to  the  use  of  the  board  of  regents,  may  be  drawn  therefrom  by  the 
lu-esident  of  the  board,  upon  the  order  of  the  board,  in  favor  of  the  treasurer  of 
the  university.  [Amendment,  approved  Mareh  30, 1874;  Ameyidmerds  1873-4,  35; 
iuok  elf'ect  July  6,  1874.^"^ 

1436.  Construction  of  buildings. 

Sec.  143G.  The  regents  must  cause  to  be  constructed  such  buildings  as  are 
needed  for  the  use  of  the  university. 

1437.  Plan  of  buildings. 

Sec.  1437.  The  plan  adoj^ted  in  the  construction  of  buildings  must  provide 
separate  buildings  for  separate  uses,  and  so  group  all  such  buildiugs  that  a 
central  building  may  bring  the  whole  in  harmony  as  part  of  one  design. 

1438.  Bids  for  construction  and  furnishing  buildings. 

Sec  1438.  The  construction  and  furnishing  of  the  buildings  must  be  let  out 
to  the  lowest  responsible  bidder,  after  advertisement  for  not  less  than  ten  days 
in  at  least  two  daily  newspapers  published  in  the  city  of  San  Francisco;  but  the 
regents  may  reject  any  bid,  and  advertise  anew. 

1439.  Temporary  buildings. 

Sec  1439.  Until  the  university  buildings  are  ready  for  use,  the  regents  may 
make  temjjorary  arrangements  for  buildings  at  Oakland. 

AKTICLE  IV. 

SECllETAKY    OE    THE    BOARD    OF    REGENTS. 

1449.  Qualif  cations  and  choice  of  secretary. 

Sec.  1449.  A  practical  agriculturist,  competent  to  superintend  the  working  of 
the  agricultural  farm  and  to  discharge  the  duties  of  secretary  of  the  board  of 
regents,  must  be  chosen  by  the  board  as  their  secretary. 

1450.  Residence  and  duties  of  secretary. 
Sec  1450.  The  secretary  must: 

1.  Reside  and  keep  his  office  at  the  seat  of  the  university; 

2.  Keep  a  record  of  the  transactions  of  the  board  of  regents,  which  must  be 
oi^en  at  all  times  to  the  insijection  of  any  citizen  of  this  state; 

3.  Have  the  custody  of  all  books,  papers,  documents,  and  other  property 
which  may  be  deposited  in  his  office; 

4.  Keep  and  file  all  reports  and  communications  which  may  be  made  to  the 
university  appertaining  to  education,  science,  art,  husbandry,  mechanics,  or 
mining; 

5.  Address  circulars  to  societies  and  others,  soliciting  information  upon  the 
latest  and  best  modes  of  culture  of  the  products  adapted  to  the  soil  and  climate 
of  the  state,  and  on  all  subjects  connected  with  field  culture,  horticulture,  stock 
raising,  and  the  dairy; 

6.  CorresjKUid  witli  established  schools  of  mining  and  metallurgy  in  Europe, 
and  obtain  inforinatiun  respecting  the  improvements  of  mining  machinery 
adapted  to  California; 

7.  Coirespond  with  tlie  patent  office  at  Washington,  and  with  the  representa- 
tives of  tlie  government  of  the  United  States  abroad,  to  procure  contributions 
to  agriculture  from  these  sources;  receive  and  distribute  seeds,  plants,  shrub- 
ber}-,  and  trees  ada^tted  to  our  climate  and  soils,  for  the  purposes  of  exjieri- 
ment; 

(a)  The  original  section  did  not  have  the  words  "  of  the  board  "  after  the  word  "  president." 

210 


EDUCATION.  1450-1475 

8.  Obtain  contributions  to  the  museums  and  the  library  of  the  university; 

9.  Keep  a  correct  account  of  all  the  executive  acts  of  the  president  of  the 
university; 

10.  Keep  an  accurate  account  of  all  moneys  received  into  the  treasury  or 
paid  therefrom; 

11.  Distribute  the  seeds,  plants,  trees,  and  shrubbery  received  by  him,  and 
not  needed  by  the  university,  equally  throughout  the  state,  to  farmers  and 
others  who  \\:ill  agree  to  cultivate  them  properly  and  return  to  the  secretary's 
oflQce  a  reasonable  proj:)ortion  of  the  products  thereof,  with  a  statement  of  the 
mode  of  cultivation,  and  such  other  information  as  may  be  necessary  to  ascer- 
tain their  value  for  cultivation  in  the  state; 

12.  Publish  from  time  to  time  in  the  newspapers  of  the  state,  free  of  charge, 
information  relating  to  agriculture,  the  mechanic  arts,  mining,  and  metallurgy. 

1451.   Term  and  compensation. 

Sec.  1451.  The  secretary  holds  office  at  the  pleasure  of  and  receives  the  com- 
pensation fixed  by  the  board. 

AETICLE  V. 

ACADEMIC    SENATE    OF    THE    UNIVERSITY. 

1461.  Academic  senate. 

Sec.  1461.  The  academic  senate  is  composed  of  the  faculties  and  instructors 
of  the  university. 

1462.  General  powers  of  . 

Sec.  1462.  The  senate  must  conduct  the  general  administration  of  the  univer- 
sity, regulate  the  general  and  special  courses  of  instruction,  receive  and  deter- 
mine all  appeals  from  acts  of  discipline  enforced  by  the  faculty  of  any  college, 
and  exercise  such  other  powers  as  the  board  of  regents  may  confer  upon  it. 

1463.  Proceedings  of. 

Sec  1463.  Its  proceedings  must  be  conducted  according  to  rules  of  order 
adopted  by  it,  and  every  person  engaged  in  instruction  in  the  university  may 
participate  in  its  discussions;  but  the  right  of  voting  is  confined  to  the  president 
and  the  j)rofessor8. 

ARTICLE  VI. 

UNIVERSITY  CADETS. 

1473.  University  cadets. 

Sec  1473.  The  students  of  the  university  must  be  organized  into  a  body 
known  as  the  "  University  Cadets." 

1474.  Officers  of  cadets. 

Sec  1474.  The  officers  of  cadets,  between  and  including  the  ranks  of  second 
lieutenant  and  colonel,  must  be  selected  by  the  chief  military  instructor,  with 
the  assent  of  the  president  of  the  university,  and  must  be  commissioned  by  the 
governor.  [Amendment,  approved  Ilarch  30, 1874;  Amendments  1873-4,  35;  took 
effect  July  6,  1874.^'" 

1475.  Equipment  of  cadets. 

Sec.  1475.  The  adjutant-general  of  the  state  must  issue  such  arms,  munitions, 
accoutrements,  and  equipments  to  the  university  cadets  as  the  board  of  regents 
may  require  and  the  governor  approve.  [Amendment,  approved  March  30,  1874; 
Amendments  1873-4,  35;  took  effect  July  6,  1874.^''> 

(a)  Original  section;  capacity  for  command,  and  must  be  commissioned  by 

Sec.  UU.  The  officers  of  cadets,  between  and   in-  the  governor, 

eluding  the  ranks  of  second  lieutenant  and  colonel,  (b)  The  original   section  did  not  have  the  words 

must  be  elected  by  the  academic  senate  after  a  com-  "  arms  "  or  "  accoutrements." 
petitlve  examination,  involving  both  scholarship  and 

217 


U70-U89  POLITICAL  CODE. 

1476.  Retired  officers  of. 

Sec.  1-476.  Upon  graduating  or  retinng  from  tlie  university,  such  officers 
may  resign  their  commissions  or  hokl  tlie  same  as  retired  officers  of  the  uni- 
vex^ity  cadets,  liable  to  be  called  into  sei^ice  by  the  governor  in  case  of  war, 
invasion,  insurrection,  or  rebellion. 

1477.  Report  of  military  instructor. 

Sec,  1477.  The  military  instructor  must  make  quarterly  rej^orts  to  the  ad- 
jutant-general of  the  state,  showing  the  number,  discipline,  and  equipments  of 
the  cadets. 

CHAPTEE  II. 

STATE  NORMAL   SCHOOL. 

1487.  Object  of  school. 

Sec.  1487.  The  state  normal  school,  located  at  San  Jose,  has  for  its  object 
the  education  of  teachers  for  the  public  schools. 

1488.  Under  control  of  hoard  of  trustees. 

Sec.  1488.  It  is  under  the  management  and  control  of  a  board  of  trustees, 
constituted  as  provided  in  Title  I  of  Part  III  of  this  Code.     [See  ante,  354.] 

1489.  General  poioers  and  duties  of  board. 

Sec.  1489.  The  powers  and  duties  of  the  board  of  trustees,  are  as  follows: 

1.  To  prescribe  rules  for  their  own  government,  and  for  the  government  of 
the  school; 

2.  To  j)rescribe  rules  for  the  reports  of  officers  and  teachers  of  the  school, 
and  for  visiting  other  schools  and  institutes; 

3.  To  prescribe  the  course  of  study,  and  the  time  and  standard  of  graduation; 

4.  To  prescribe  the  text-books,  ajiparatus,  and  furniture,  and  provide  the 
same,  together  with  all  stationery,  for  the  use  of  the  pupils; 

5.  To  establish  and  maintain  training  or  model  schools,  and  require  the 
pupils  of  the  nonnal  school  to  teach  and  instruct  classes  therein; 

6.  To  elect  a  principal  and  other  necessary  teachers,  fix  their  salaries  and 
prescribe  their  duties; 

7.  To  issue  diplomas  of  graduation  upon  the  recommendation  of  the  faculty 
of  the  school; 

8.  To  control  and  expend  all  moneys  appropriated  for  the  support  and  main- 
tenance of  the  school,  and  all  moneys  received  for  tuition,  or  from  donations; 
in  no  event  shall  any  moneys  aj^propriated  for  the  support  of  the  schqol,  or  re- 
ceived from  tuition  or  donations,  be  paid  or  used  for  compensation  or  traveling 
expenses  of  the  trustees  of  the  school; 

9.  To  keep  a  record  of  their  proceedings; 

10.  To  keep  open  to  public  inspection  an  account  of  receipts  and  expenditures; 

11.  To  annually  report  to  the  governor  a  statement  of  all  their  transactions, 
and  of  all  mutters  pertaining  to  the  school; 

12.  To  transmit  with  such  report  a  copy  of  the  principal  teacher's  annual 
report. 

13.  To  revoke  any  diploma  by  them  granted,  on  receiving  satisfactory  evi- 
dence that  the  holder  thereof  is  addicted  to  drunkenness,  is  guilty  of  gross 
immorality,  or  is  reputably  dishonest  in  his  dealings;  provided,  that  such 
person  shall  have  at  least  thirty  days  previous  notice  of  such  contemplated 
action,  and  shall,  if  he  asks  it,  be  heard  in  his  own  defense.  [Amendment,  ap- 
proved March  30,  1874;  Amendments  \Kl'i-4c,  75;  took  effect  immediately.^"'' 

(a)  The  original  sftction  did  not  have  the  thirt' .  ntli         7.  To  issue  certificates  of  standing  and  of  gradua- 
BiibdiviHion.     In  the  eighth  It  ilid  not  have  the  hist     tiou. 
clauHe  commencing  with  the  words   "in   no  event." 
The  seventh  tjubdivibi  ju  was  as  followB; 

218 


EDUCATION  1490-1502 

1490.  Begidar  meetings  of  hoard. 

Sec.  1490.  The  board  must  hold  two  regular  meetings  in  each  year. 

1491.  Special  meetings  of  hoard. 

Sec,  1491.  It  may  hold  special  meetings  at  the  call  of  the  secretary. 

1492.  Time  and  place  of  meeting  of  hoard. 

Sec.  1492.  The  time  and  place  of  regular  meetings  must  be  fixed  by  the  by- 
laws. The  secretaiy  must  fix  and  give  written  notice  of  the  time  and  place  of 
special  meetings. 

[Sec.  1493*^*^  was  repealed  by  act  approved  March  30,  1874;  Amendments 
1873-4,  79;  took  effect  immediately.] 

1494.  General  qualifications  for  admission  as  pvpil. 

Sec  1494.  Every  jjerson  admitted  as  a  pupil  of  the  normal  school  course 
must  be : 

1.  Of  good  moral  character; 

2.  Of  sixteen  years  of  age; 

8.  Of  that  class  of  persons  who,  if  of  a  proper  age,  would  be  admitted  in  the 
public  schools  of  this  state  without  restriction.  [Ame7idment,  approved  March 
30,  1874;  Amendments  1873-4,  76;  took  effect  immediately.^^'' 

1495.  Pupils  from  state  at  large. 

Sec  1495.  Teachers  holding  state  certificates  of  the  first  or  second  gi'ades 
may  be  admitted  from  the  state  at  large. 

1496.  Pupils  from  other  states. 

Sec  1496.  Persons  resident  of  another  state  may  be  admitted  upon  letters  of 
recommendation  from  the  governor  or  superintendent  of  schools  thereof. 
[Amendment,  approved  llarch  30,  1874;  Amendments  1873-4,77;  took  effect  im- 
mediately.^"'' 

1497.  Pupils  to  file  certain  declaration. 

Sec.  1497.  Every  person  making  apj)lication  for  admission  as  a  puj^il  to  the 
normal  school  must,  at  the  time  of  making  such  application,  file  with  the  prin- 
cipal of  the  school  a  declaration  that  he  enters  the  school  to  fit  himself  for 
teaching,  and  that  it  is  his  intention  to  engage  in  teaching  in  the  public  schools 
of  this  state,  or  in  the 'state  or  territory  where  the  applicant  resides.  [Amend- 
ment, approved  March  30, 1874;  Amendments  1873-4,  77;  took  effect  immediately .^^^ 

[Sees.  1498,  1499  and  1500  '^>  were  repealed  by  act  approved  March  30,  1874; 
Amendments  1873-4,  79;  took  effect  immediately.] 

1501.  Pi'incipal  to  make  annual  report. 

Sec  1501.  The  principal  of  the  school  must  make  a  detailed  annual  reiDOi-t  to 
the  board  of  trustees,  with  a  catalogue  of  the  j^upils,  and  such  other  particulars 
as  the  board  may  require  or  he  may  think  useful, 

1502.  To  attend  county  institutes. 

Sec  1502.  He  must  also  attend  county  institutes,  and  lecture  before  them  on 
subjects  relating  to  public  schools  and  the  profession  of  teaching. 

(a)  Repealed  section:  retary  a  cTeclaration  that  lie  enters  the  school  to   fit 

Sec.  1493.  At  one  of  the  regular  meetings  in   each  himself  for  teaching,  and  that  it  is  his  intention  to 

year  the  board  must  determine  the  number  of  pupils  engage  in  teaching  in  the  public  schools  of  this  state, 

to  be  admitted  from  the  counties,  and  this  number  ( e)  Repealed  sections: 

must  be  apportioned  among  the  counties  in  proiior-  Sec.  1498.  The  board  of  examiners  of  each  county 

tion  to  the  number  of  members  of  the  assembly  from  must,  before  the  first  day  of  May  in  each  year,  hold 

each.               ■  competitive  examinations  of  all  qualified  persons  de- 

(6)  The  original  section  did  not  have  the  words  "  of  siring  to  be  admitted  from  such  county  as  jiupils  in 

the  normal  school  course,"  and   in  the  second  sub-  the  normal  school. 

division  it  had  the  words  "over  sixteen"  instead  of  Sec.  1499.  Such  examinations  must  be  held  in  the 

"  of  sixteen."  same  manner  as  examinations  for  third  grade  county 

(c)  The  original   section  had   the  following  addi-  certificates. 

tional  words,  "  and  upon  payment  of  one  hundi-ed  dol-  Sec.  1500.  Persons  passing  such  examination  must, 

lars."  in  the  order  of  their  proficiency  to  the  number  appor- 

(d)  Original  section:  tioned  to  such  county,  upon  the  certificate  of  the  board 
Sec.  1497.  Every  person  resident  of  this  state  must,  of  examiners,  be  admitted  as  pupils  of  the  noi-mal 

upon  admission  as  a  pupil,  sign  and  file  with  the  sec-     school. 

219 


1503-1507  POLITICAL  CODE. 

1503.  Diplomas  and  certificates,  xdhen  to  issue. 

Sec.  1503.  Tpon  the  recommendation  of  the  faculty  of  the  scliool,  the  board 
of  trustees  may  issue  to  those  who  worthily  complete  the  full  course  of  study 
and  training  prescribed,  a  diploma  of  graduation.  To  the  persons  receiving 
this  diploma,  the  state  board  of  examination  shall  grant  a  first-grade  state 
certificate.  In  like  manner  they  shall  issue  to  those  who  worthily  complete  the 
post  graduate  course,  a  professional  diploma.  To  the  persons  receiving  this 
diploma,  the  state  board  of  examination  shall  grant  an  educational  diploma; 
and  they  may,  at  their  discretion,  issue  an  elementaiy  diploma  to  those  who 
worthily  comj^lete  such  part  of  the  course  of  study  and  training  as  may  be 
prescribed.  To  the  persons  receiving  this  diploma,  the  state  board  of  education 
shall  grant  a  second-grade  state  certificate.  [Amendment,  apjjroved  March  30, 
1S74;  Amendments  l^lZ-4:,  11;  took  effect  immediately ^^ 

1504.  Secretary  of  hoard  of  trustees. 

Sec  1504.  The  board  of  trustees  shall  have  power  to  appoint  a  secretaiy,  who 
shall  receive  no  compensation.  A  full  record  of  all  the  proceedings  of  the 
board  of  trustees  shall  be  kept  at  the  school,  and  shall  be  open  to  public  inspec- 
tion. [Amendment,  approved  March  30,  IST-l;  Amendments  1873-4,  78;  took 
efTect  immediately .^^^ 

1505.  SujJO^ision  by  superintendent  ofjniblic  instruction. 

Sec.  1505.  The  suiDerintendent  of  public  instruction  must  visit  the  school 
from  time  to  time,  inquire  into  its  condition  and  management,  enforce  the 
rules  and  regulations  made  by  the  board,  require  such  reports  as  he  deems 
jiroper  from  the  teachers  of  the  school,  and  exercise  a  general  supervision  over 
the  same.  [Amendinod,  approved  March  30,  1874;  Amendments  1873-4,  78; 
took  effect  immediately.^"'' 

1506.  Biennial  appropriation  to  be  made. 

^Skc.  150G.  The  sum  of  twenty-four  thousand  dollars  must  be  api)ropriated 
biennially,  out  of  any  moneys  in  the  general  fund  not  otherwise  aj)proj)riated, 
one  half  of  which  appro})riatiou  must  be  set  apart  at  the  commencement  of  each 
fi.scal  year  to  support  the  state  normal  school.  "Whenever,  at  the  close  of  any 
fiscal  year,  a  balance  remains  to  the  credit  of  the  state  normal  school  fund,  such 
balance  must  be  carried  forward  and  added  to  the  approj)riation  for  the  suc- 
ceeding year. 

1507.  Orders  on  controller,  how  drawn. 

Skc.  1507.  All  orders  upon  the  controller  of  state  by  the  board  of  trustees, 
must  be  signed  by  the  })resident  of  the  board,  and  countersigned  by  the  secre- 
tan,-.  L'pon  presentation  of  the  order  aforesaid,  signed  and  countersigned  as 
af(jresaid,  the  controller  of  state  must  draw  his  warrant  on  the  state  treasurer 
ill  favor  of  the  board  of  trustees  for  the  moneys,  or  any  part  thereof,  appropri- 
ated and  set  apart  for  the  support  of  the  normal  school,  and  the  treasurer  must 
pay  such  warrant  on  presentation.  [Amendments,  approved  March  30,  1874; 
Amendments  1873-4,  78;  took  effect  immediately.^^' 

[The  following  acts  in  relation  to  the  state  normal  school  may  here  be  referred 
to:J 

(1)  Orliflnal  nf;rtlon:  from  time  to  tiiim,  inquire  into  its  oondition  and  niau- 

Skc.  \M\.  Kv<ry  i)<-n«>n  liolrllnj;  n  diploma  iRBuert  by  ngcincut,  enforce  the  rules  and  rcKulatioiiK  mad"  by  the 

the  liounl  of  tnihtci'K  of  the  normal  Kc'hool  may  tench  in  board,  require  Kuch  reijorts  as  he  deems  iiroper  from 

the  i)ubllc-  Hchords  of  this  htate  for  the  time  uud  in  the  tctachers  of  the  school  and  ofli<ers  of  the  boarding- 

tbc  grade  jireHcHlied  by  the  <llidomu.  house,  and   exercise  a  general   supervision  over  the 

(6)  OrlginHl  wi  tlon:  same. 

8Er;.  \hkii.  The  huperliit<-ndent  of  public  Instruction  (</)  The  original   section  read,  "  when  ordered  by 

is  the  secntary  and  executive  agent  of  the  board.  the  board  of  trustees,  the  controller  must  draw  his 

(c)  Original  section:  warrant  ou  the  state  treasurer,"  and  so  ou  as  in  the 

Bec.  15Ui.  Aii  Buch  agent  he  luiuit  visit  the  school  umeudmeut  after  "  state  treasurer." 

220 


EDUCATION.  1507-1518 

An  Act  to  provide  for  finishing  the  state  normal  school  building  and  paying  the  indebted- 
ness incurred  in  the  construction  thereof. 

Approved  March  29,  1872;  1871-2,  6G9. 

[This  act,  as  its  title  imports,  provided  for  the  completion  of  the  state  normal 
school  building-  at  San  Jose.  J 

An  Act  making  an  ai^propriatiou  for  the  purchase  of  aj^iiaratus  for  the  state  normal  school. 
Approved  March  23,  1874;  1873-4,  518. 

[This  act  approjiriated  $3000  for  the  purpose  indicated  in  the  title.] 

An  Act  to  appropriate  monej^  to  complete  the  state  normal  school  building  and  for  the  im- 
proving of  the  grounds. 

Approved  March  25,  1874  ;   1873-4,  G03. 

[This  act  appropriated  $25,000  for  the  purpose  indicated.] 

An  Act  to  appropriate  the  sum  of  $13,000  to  make  certain  repairs  on  the  state  normal  school 
and  to  provide  furniture  therefor,  and  also  to  provide  for  a  deiiciency  in  the  appropriation  for 
the  twenty-sixth  and  twenty-seventh  fiscal  years,  for  said  school. 

Approved  March  25,  1876;  1875-6,  482. 

[This  act  appropriated  $13,000  for  the  purposes  indicated  in  its  title.] 


CHAPTER  III. 

PUBLIC  SCHOOLS. 

Aeticle   I.  State  Boaed  of  Education 1517 

II.  Supeeintendent  of  Public  Insteuction 1532 

III.  School  Supeeintendents ...» 1542 

IV.  Teachees'  Institutes 1560 

V.  School  Disteicts 1575 

VI.  Elections  foe  School  Teustees 1593 

VII.  BoAEDs  OF  Trustees  of  School  Districts  and  City  Boards  of  Education.  1613 

VIII.  District  Census  Marshals 1634 

IX.  Cleeks  of  School  Districts 1649 

X.  Schools 1662 

XI.  Pupils 1683 

XII.  Teachers 1696 

XIII.  Disteict  Libraries 1712 

XIV .  Educational  Journal 1726 

XV.  State  Board  of  Examination 1741 

XVI.  County  Boards  of  Examination 1768 

XVII.  City  Boards  of  Examination 1787 

XVIII.  County  School  Tax  1818 

XIX.  District  School  Tax 1830 

XX.  General  Provisions  Relative  to  School  Funds  and  Taxes 1857 

XXI.  Miscellaneous  Provisions  relating  to  Public  Schools 1871 


ARTICLE  I. 

STATE    BOARD-  OF    EDUCATION. 

1517.  Board,  how  constituted. 

Sec.  1517,  The  state  board  of  education  consists  of  the  governor,  the  super- 
intendent of  public  instruction,  the  principal  of  the  state  normal  school,  and 
the  school  superintendents  of  San  Francisco,  Sacramento,  Santa  Clara,  Alameda, 
Sonoma,  and  San  Joaquin  counties. 

1518  Organization  of. 

Sec.  1518,  The  governor  is  the  president,  and  the  superintendent  of  public 
instruction  the  secretary  of  the  board. 

221 


1510-1532  POLITICAL  CODE. 

1519.  Concurrence  of  a  innjority  of  all  members  necesmrij. 

Sec.  1519.  A  concuiTeuce  of  a  majority  of  all  the  members  is  necessai^  to  the 
valiility  of  any  act  of  the  board. 

1520.  JTeedngs  of. 

Sec.  1520.  The  board  meets  at  the  call  of  the  secretary,  and  not  less  than 

twice  in  each  year. 

1521.  General  powers  and  duties. 

Sec.  1521.  The  powers  and  duties  of  the  board  are  as  follows: 

1.  To  adopt  rules  and  regulations,  not  inconsistent  with  the  laws  of  this 
state,  for  its  own  government,  and  for  the  government  of  the  public  schools 
and  district  school  libraries; 

2.  To  prescribe  and  enforce  rules  for  the  examination  of  teachers; 

3.  To  prescribe  a  standard  of  proficiency  before  a  county  board  of  examina- 
tion which  will  entitle  a  person  examined  by  such  board  to  a  state  certificate ; 

4.  To  prescribe  and  enforce  the  course  of  study  in  the  public  schools; 

5.  To  prescribe  and  enforce  the  use  of  a  uniform  series  of  text-books  in  the 
public  schools,  except  in  the  city  and  county  of  San  Francisco; 

6.  To  adopt  a  list  of  books  for  district  school  libraries; 

7.  To  grant  or  to  revoke,  for  immoral  or  unprofessional  conduct,  profanity, 
intemperance,  or  evident  unfitness  for  teaching,  life  diplomas; 

8.  To  review,  on  appeal,  an  order  revoking  a  state  certificate  or  diploma; 

9.  To  have  done  by  the  state  printer,  or  other  officer  having  the  manage- 
ment of  the  state  printing,  any  printing  required  by  it; 

10.  To  adopt,  and  use  in  the  authentication  of  its  acts,  an  official  seal; 

11.  To  keep  a  record  of  its  proceedings.  \ Amendment,  ap2Jroved  J/arc/i  13, 
1874;  Amendments  1873-4, *79;  took  effect  from  passage.^"^ 

1522.  Traveling  expenses: 

Sec.  1522.  The  actual  traveling  expenses  of  the  members  incurred  in  attend- 
ing the  meetings  of  the  board  must  be  audited  by  the  controller,  and  paid  out 
of  the  general  fund  in  the  state  treasury. 

ARTICLE  II. 

SUPERINTENDENT    OF    PUBLIC    INSTRUCTION. 

1532.   Gnxoral  duties  of  superintendent. 

Sec.  1532.  It  is  the  duty  of  the  superintendent  of  public  instruction: 

1.  To  superintend  the  public  schools  in  this  state; 

2.  To  report  to  the  governor,  on  or  before  the  fifteenth  day  of  November,  of 
the  years  on  which  the  regular  session  of  the  legislature  arfe  held,  a  statement 
of  the  condition  of  the  state  normal  school  and  other  educational  institutions 
Bupportf'd  by  the  state,  and  of  the  public  schools; 

3.  To  accompany  his  report,  tabular  statements,  showing  the  number  of  school 
children  in  tlie  state;  the  number  attending  public  schools,  and  the  average 
attendance;  the  number  attending  private  schools,  and  the  number  not  attend- 
ing schools;  the  amount  of  state  school  fund  apportioned,  and  sources  from 
which  derived;  the  amount  raised  by  county  and  district  taxes,  or  from  other 
soiirces  of  revenue,  for  school  purposes;  and  the  amount  expended  for  salaries 
of  teachers,  and  for  building  schoolhouses; 

4.  To  apportion  the  state  scliool  funds,  and   furnish  the  controller,  state 

(a)  Thf- oritfinHl  Kfction  diffi-rid  In  Uii- lifDi,  Kivciith         7.  To  ((rant  lifo  tliplomas; 
and  nintli  KubdivihiouB,  which  w<t(:  uh  followH:  '.).  To  hiivf;  done  by  the  utate  printer  any  printing  re- 

6.  To   pr'-Hiribe  and  enforce  the  iiKf  of  a  uiiifomi     quired  by  it. 
serieB  of  text-books  in  the  public  Hcho(dK,  except  lu  In- 
corporated citiea  and  towns; 

222 


EDUCATION.  1532-1543 

board,  of  examiners,  and  each  county  treasurer  and  county  superintendent,  with 
an  abstract  of  siicli  ai^portioninent; 

5.  To  draw  bis  order  on  the  controller  in  favor  of  each  county  treasurer,  for 
the  school  moneys  apportioned  to  the  county; 

6.  To  prepare,  have  printed,  and  furnish  to  all  officers  charged  with  the 
administration  of  the  laws  relating  to  public  schools,  and  to  teachers,  such 
blank  forms  and  books  as  may  be  necessary  to  the  discharge  of  their  duties; 

7.  To  have  the  law  relating  to  the  public  schools  printed  in  a  jiamphlet  form, 
and  annex  thereto  forms  for  making  reports  and  conducting  school  business, 
the  course  of  study,  rules  and  regulations,  a  list  of  text-books  and  library 
books,  and  such  suggestions  on  school  architectui-e  as  he  may  deem  useful; 

8.  To  supply  school  officers  and  teachers,  school  libraries,  and  state  libraries 
with  one  copy  each  of  the  pamphlet  mentioned  in  the  preceding  subdivision; 

9.  To  visit  the  several  orphan  asylums  to  which  state  appropriations  are 
made,  and  examine  into  the  course  of  instruction  therein; 

10.  To  visit  the  schools  in  the  different  counties,  and  inquire  into  their  con- 
dition; and  the  actual  traveling  expenses  thus  incurred,  provided  they  do  not 
exceed  fifteen  hundred  dollars,  shall  be  allowed,  audited,  and  paid  out  of  the 
general  fund  in  the  same  manner  as  other  claims  are  audited  and  paid; 

11.  To  authenticate,  with  his  official  seal,  all  drafts,  or  orders  drawn  on  him, 
and  all  papers  and  writings  issued  from  his  office; 

12.  To  have  bound,  at  an  annual  exj)ense  of  not  more  than  one  hundred  and 
fifty  dollars,  all  valuable  school  reports,  journals,  and  documents,  in  his  office, 
or  hereafter  received  by  him,  payable  out  of  the  state  school  fund; 

13.  To  deliver  over,  at  the  expiration  of  his  term  of  office,  on  demand,  to  his 
successor,  all  property,  books,  documents,  maps,  records,  reports,  and  other 
papers  belonging  to  his  office,  or  which  may  have  been  received  by  him  for  the 
use  of  his  office.  [Amendment,  approved  March  28,  1874;  Amendments  1873-4, 
8G;  took  effect  from  passage}^'' 

1533.  Annual  report  to  controller  of  number  of  children. 

Sec.  1533.  The  superintendent  of  public  instruction  must  report  to  the  con- 
troller, on  or  before  the  tenth  day  of  August,  of  each  year,  the  total  number  of 
children  in  the  state  between  the  ages  of  five  and  seventeen  years,  as  shown  by 
the  latest  reports  of  the  school  superintendents  on  file  in  his  office.  [New  sec- 
tion,  approved  March  13,  1874;  Amendments  1873-4,  84;  took  effect  from  passage. 

AKTICLE  III. 

SCHOOL    SUPERINTENDENTS. 

[Sec.  1542 '•"  was  repealed  by  act  approved  February  27,  1874,  and  again  by 
act  approved  March  13,  1874;  Amendments  1873-4,  113  and  84;  the  latter  took 
effect  from  passage.] 

1543.  General  duties  of  school  superintendents. 

Sec  1543.  It  is  the  duty  of  the  county  superintendent  of  each  county: 

1.  To  apportion  the  school  moneys  of  each  school  district  quarterly; 

2.  On  the  order  of  the  board  of  trustees,  or  board  of  education,  to  draw  his 
warrant  upon  the  county  treasurer  against  the  school  fund  of  any  city,  towTi, 

(a)  The  original  section  did  not  have  the  thirteenth  iirer  and  school  superintendent  with  an  abstract  of 

subdivision,  and  differed  in  the  second,  fourth   and  such  apportionment ; 

tenth  subdivisions,  which  were  as  follows:  10.  To  visit  the  schools  of  the  different  counties,  and 

2.  To  report -to  the  governor  a  statement  of  the  con-  inquire  into  their  condition, 

dition  of  the  state  normal   school,  and  other  educa-  (6)  Repealed  section: 

tional  institutions  supported  by  the  state,  and  of  the  Sec.  1542.  No  person  is  eligible  to  the  office  of  school 

public  schools;  superintendent  who  is  not  a  professional  teacher,  pos- 

4.  To  apportion  the  school  funds,  and  furnish  the  sessing  a  first  grade  certificate, 
controller,  board  of  examiners,  and  each,  county  treas- 

223 


1543  POLITICAL  CODE. 

or  district;  be  must  dra-^  Lis  wan-ants  in  tlie  order  in  which  they  are  ordered 
by  the  proper  authority;  each  warrant  nnist  specify  the  purpose  for  which^tbe 
money  is  required,  and  must  be  paid  in  the  order  in  which  it  is  draAvn,  but  no 
warrant  must  be  drawn  unless  there  is  sufficient  money  in  the  fund  to  pay  it; 

3.  To  keep  open  to  the  inspection  of  the  public  a  register  of  warrants,  show- 
ing the  fund  upon  which  the  warrants  have  been  drawn,  the  number  thereof,  in 
whose  favor,  and  for  what  sel•^■ice  drawn,  and  also  a  receipt  from  the  person  to 
whom  the  warrant  was  delivered; 

4.  To  visit  each  school  in  his  county  at  least  once  in  each  year;  and  for  every 
school  not  \-isited  the  board  of  supervisors  must,  on  proof  thereof,  deduct  ten 
dollars  from  the  countj'  superintendent's  salaiy^; 

5.  To  preside  over  teachers'  institutes  held  in  his  county,  and  to  secure  the 
attendance  thereat  of  lecturers  competent  to  instiaxct  in  the  art  of  teaching, 
to  enforce  the  course  of  study,  the  use  of  the  text-books,  and  the  rules  and 
regulations  for  the  examination  of  teachers  prescribed  by  the  proper  authority; 

G.  To  issue  temporary  certificates,  valid  until  the  next  reg-ular  meeting  of  the 
county  board  of  examination,  to  persons  holding  certificates  of  like  grade 
gi-anted  in  other  counties; 

7.  To  certify  to  the  state  board  of  examination  the  names  of  j)ersons  exam- 
ined before  county  boards  of  examination; 

8.  To  distribute  all  laws,  reports,  circulars,  instiTictions,  and  blanks,  which 
he  may  receive  for  the  use  of  school  officers; 

9.  To  keej)  in  his  office  the  reports  of  the  superintendent  of  public  instiaic- 
tion  and  a  file  of  the  educational  journal; 

10.  To  keep  a  record  of  his  official  acts,  and  of  the  proceedings  of  the 
county  board  of  examination,  including  a  record  of  the  standing  in  each  study 
of  all  applicants  examined; 

11.  To  keep  in  his  office  such  works  on  school  architecture  and  education  as 
may  be  prescribed  by  the  state  board  of  education,  and  pay  for  them  out  of 
the  unapportioued  count}'  school  fund; 

12.  To  (except  in  incorporated  cities  and  towns)  pass  upon,  and  aj^prove,  and 
reject  plans  for  schoolhouses; 

13.  To  apjjoiut  trustees  to  fill  all  vacancies  created  by  failure  to  elect,  or 
otherwise,  to  hold  till  the  next  annual  election; 

14.  To  make  reports  when  directed  by  the  superintendent  of  jjublic  instruc- 
tion, sliowiug  such  matters  relating  to  the  public  schools  in  his  county  as  may 
be  required  of  him; 

15.  In  all  counties  containing  twenty  thousand  inhabitants,  or  upwards,  to 
devote  his  whole  time  to  the  supervision  of  the  schools  in  his  county; 

10.  To  carefully  pi-eserve  all  reports  of  school  officers  and  teachers,  and,  at 
the  close  of  his  official  term,  deliver  to  his  successor  all  records,  books,  docu- 
ments, and  papers,  belonging  to  the  office,  taking  a  receipt  for  the  same,  which 
shall  be  filed  in  the  office  of  the  county  clerk.  [Amendment,  approved  2Iarch  28, 
1874;  Amendments  1873-4,  88;  took  effect  from  p)assage}^^ 

ia)  The  oriRlnal  Rcrtton  did  not  have  the  pixtceiith  0.  To  keep  in  his  office  the  reports  of  the  superin- 

Buldiivjhion.  and  diffcnd  in  tin-  h<<  ond,  fourtli,  ninth,  tendcnt  and  a  liU;  of  the  edncatiounl  journal; 

tenth,  twelfth  and  thirteenth,  which  were  ax  follows:  10.  To  keep  a  record  of  his  official  acts,  and  of  the 

2.  On  the  order  of  the  hoard  of  tniFtecK  or  hoard  of  proceedings  of  the  county  boiird  of  exnminiition; 

education,  to  draw  his  warrant  iijion  the  county  treae-  12.  To  (except  in  iucoriiorated  cities  and  towns)  pass 

urer  against  the  school  fund  of  any  city,  town  or  dis-  upon  and  approve  or  reject  iilaus  for  schoolhouses; 

trict;  13.  To  aiijjdint  trustees  for  any  district 'which  falls 

4.  To  visit  each  school  in  his  county  at  least  once  in  to  elect  at  the  annual  election. 
each  year; 


224 


EDUCATION.  1543-154-1 

An  Act  to  provide  for  the  distribution  of  school  moneys  in  certain  counties. 
Api^roved  March  18,  J876;  1875-6,  332. 

Counties  affected,  apporiionmcid. 

Section  1.  The  county  superintendents  of  the  counties  of  Fresno,  Contra 
Costa,  Shasta,  Lassen,  shall  apportion  the  school  moneys  as  follows: 

1.  He  shall  apportion  five  hundred  dollars  to  each  school  district; 

2.  He  shall  ascertain  the  number  of  census  children  required  to  be  entitled  to 
five  hundred  dollars,  if  a  jiro  rata  distribution  of  all  school  moneys  were  made, 
and  the  excess,  after  apportioning  five  hundred  dollars  to  each  school  district  in 
the  county,  shall  be  ai^portioned  among  the  districts  having  a  greater  number  of 
census  children  than  required  to  be  entitled  to  five  hundred  dollars,  in  j)roj)or- 
tion  to  the  number  in  each  district  in  excess  of  said  number;  i)rovided,  that  in 
Fresno  county.  Contra  Costa  county,  and  Shasta  county,  no  district  which  is 
entitled  to  only  one  teacher  shall  receive  more  than  twelve  hundred  dollars,  and 
no  district  shall  be  considered  entitled  to  two  teachers  unless  that  district 
sustain  two  sejoarate  schools,  or  one  school  which  has  an  average  daily  attend- 
ance of  more  than  sixty  students,  as  shown  by  the  school  register  of  that  district 
for  the  next  preceding  year;  and  if  there  be  an  excess  of  money  in  such  district, 
it  shall  be  redistributed  among  the  other  districts,  as  provided  in  this  act. 

Sec.  2.  This  act  shall  take  effect  and  be  in  force  from  and  after  the  thirtieth 
(30)  of  June,  eighteen  hundred  and  seventy-six. 

An  Act  to  provide  for  the  distribution  of  school  moneys  in  the  countj'  of  Marin. 
Approved  March  30,  1876;  1875-6,  568. 

Superintendent  to  apportion  moneys. 

Section  1.  The  school  superintendent  of  Marin  county  must  apportion  all 
state  and  county  school  moneys  as  follows: 

1.  He  must  ascertain  the  number  of  teachers  each  district  is  entitled  to,  b}- 
calculating  one  teacher  for  every  seventy-five  census  children  or  fraction  thereof 
of  not  less  than  fifteen  census  children,  as  shown  by  the  next  preceding  school 
census; 

2.  He  must  ascertain  the  total  number  of  teachers  for  the  county  by  adding 
together  the  number  of  teachers  assigned  to  the  several  districts; 

3.  Five  hundred  dollars  shall  be  apportioned  to  each  district  for  every  teacher 
assigned  it;  provided,  that  to  districts  having  ten  and  less  than  fifteen  census 
children,  shall  be  aj^portioned  three  hundred  dollars. 

4.  All  school  moneys  remaining  on  hand  after  apportioning  five  hundred 
dollars  to  each  district  having  fifteen  census  children  or  more,  for  every  teacher 
assigned  it,  and  after  apportioning  three  hundred  dollars  to  districts  having  less 
than  fifteen  census  children,  must  be  apportioned  to  the  several  districts  having 
not  less  than  twenty-five  census  children,  in  proportion  to  the  number  of  census 
children  in  each  district. 

Sec.  2.  This  act  shall  take  effect  from  and  after  the  thirtieth  day  of  June,  one 
thousand  eight  hundred  and  seventy-six. 
1544.  Forfeiture  for  failure  to  report. 

Sec.  1544.  If  he  fails  to  make  a  full  and  correct  report,  required  under  the 
provisions  of  subdivision  fourteen  of  section  fifteen  hundred  and  forty-three,  at 
the  time  fixed  by  the  superintendent  of  i>ublic  instruction,  he  forfeits  one  hun- 
dred dollars  of  his  salary,  and  the  board  of  supervisors,  upon  receiving  from  the 
superintendent  of  public  instmction  notice  of  such  failure,  must  deduct  the 
amount  forfeited  from  his  salary.  [Amendnients,  approved  3Iarch  28,  1874; 
Amendments  1873-4,  90;  took  eff\'cl  from  jjassage.^"^ 

(a)  Original  section:  hoard  of  supervisors,  upon  receiving  from  the  superin- 

Seo.  154-t.  If  he  fails  to  make  any  report  required  teudent  notice  of  such  failure,  must  deduct  the  amount 

under  the  provisions  of  subdivision  14  of  section  1543,  forfeited  from  his  salary. 

he  forfeits  one  hundred  dollars  of  his  salary,  and  the 

15  225 


1545-1551  POLITICAL  CODE. 

1545.  May  appoint  teachers  and  open  schooh,  xclien. 

Sec.  1545.  He  must,  when  there  is  sufficient  money  in  the  fund  of  any  school 
district  to  maintain  a  school  therein  for  five  months,  if  the  trustees  fail  to  have 
such  school  kept,  appoint  a  teacher  and  open  and  keep  such  school,  and  may 
draw  his  warrant  upon  the  fund  of  such  district  for  the  expense  incurred. 

1546.  Mail  direct  repairs,  etc.,  lohen. 

Skc.  154(!.  He  may,  in  his  discretion,  require  the  trustees  of  any  district  to 
repair  the  school  buildings  or  property,  or  to  abate  any  nuisance  in  or  about  the 
premises,  if  such  repairs  or  abatement  can  be  done  for  a  sum  not  exceeding 
fifty  dollars,  and  there  is  a  sufficient  amount  of  money  in  the  treasury  to  the 
credit  of  the  district.  He  may  also  in  all  cases  require  the  trustees  to  provide 
suitable  outhouses,  and,  where  practical)le,  to  adorn  the  grounds  with  frviit  and 
ornamental  trees  and  shrubbery;  and  if  the  trustees  neglect  to  make  such  pro- 
vision, he  maj'  cause  it  to  be  done,  and  pay  for  it  on  his  ow^n  warrant  out  of 
any  money  to  the  credit  of  the  district. 

[Sec.  1547^"'  Avas  repealed  by  act  apiH'oved  March  28,  1874;  Amendments 
1873-4,  111;  took  eli'ect  from  passage.] 

1548.  Warrants  for  expenses  and  claims. 

Sec.  1548.  He  must  draw  his  warrants  on  the  unapportioned  county  school 
fund  for  the  i^ayment  of  members  of  the  county  board  of  examination,  and  in  his 
own  favor  for  the  binding  of  school  documents,  not  to  exceed  twenty  dollars  a 
year;  for  postage  and  expressage  for  his  office,  not  to  exceed  one  dollar  for  each 
district  in  his  county,  and  for  any  other  incidental  expense  as  may  be  author- 
ized b}-  law.  [Ame)idment,  approved  March  28,  1874;  Amendments  1873-4,  90; 
took  effect  from  passage.'-^^ 

1549.  3Iay  appoint  deputy. 

Sec.  1549.  Each  county  superintendent  may  appoint  a  deputy,  but  no  salary 
pa3'able  out  of  the  school  fund  must  be  allowed  such  dejDuty.  [Amend7nent, 
approved  March  28,  1874;  Amendments  1873-4,  90;  took  effect  from  passage.  ^" 

1550.  Compensation  of  deputy  in  San  Francisco. 

Sec.  1550.  The  deputy  school  superintendent  of  the  city  and  county  of  San 
Francisco  may  receive  such  compensation  as  the  board  of  education  thereof 
prescribes,  payable  in  the  same  manner  and  out  of  the  same  fund  as  the  school 
superintendent  thereof  is  paid. 

1551.  Scliool  superintendent  to  report  number  of  children. 

Sec.  1551.  Each  school  superintendent  in  this  state  must,  on  or  before  the 
first  day  of  August  in  each  year,  report  to  the  supeiintendent  of  public  instruc- 
tion, and  to  the  boai'd  of  supervisors  of  their  respective  counties,  the  number 
of  cliildren  in  their  counties  between  the  ages  of  five  and  seventeen  years,  as 
appears  by  the  latest  returns  of  the  census  marshal  on  file  in  their  office.  \Neiu 
section,  approved  March  13,  1874;  Amendments  1873-4,  85;  took  cff'ect  from 
passage. 

Duty  as  to  l)ou}td(iries  of  school  districts. 

Sec.  1551.  It  sliall  be  the  duty  of  every  county  supeiintendent  to  inquire  and 
ascertain  whether  tlie  boundaries  of  school  districts  in  his  county  are  definitely 
and  plainly  described  in  the  records  of  the  board  of  supervisors,  and  to  keep  in 

(o)  Rcpealfid  section:  Sko.  1548.  He  niuRt  drnw  liis  warrant  on  the  county 

■  BKf.  1.'.47.  He  iimst  <lraw  warnwifK  in   tlie  order  in  treaKuriT  for  anv  bin  anditcd  by  the  tniKtccs  of  any 

which  they  are  ordereil  by  the  iiroinr  authority.   Each  district  and  a\ithorized  by  biw  iii  his  own  favor  on  the 

warrant  nniKt  Hpecify  tliepnrpoKe  fur  \v)ii.li  Un- money  iinapportioneil  county  sdiool   money  for  tlie  payment 

Ib  required,  and  must  be  paid  in  flie  ord<r  in  which  it  of  members  of  the  county  board  of  examiners  for  the 

iH  drawn;  but  no  warrant  i-an  l)e  drawn  unless  there  is  binding,  et(\ 

Buffieient  mon<y  in  the  fund  to  pay  it.  (,:)  The  orisinal  section  had  tlie  word  "  school  "  in- 

(//)  The  original  section  driwn  to  an<l  including  the  stead  of  "  county." 
words  "  for  the  binding  "  was  as  follows: 

226 


EDUCATION.  1551-1561 

his  office  a  full  and  correct  transcript  of  such  boundaries.  In  case  the  bound- 
aries of  districts  are  conflicting  or  incorrectly  described,  he  sball  change,  har- 
monize, and  describe  them,  and  make  a  report  of  such  action  to  the  supervisors, 
and,  on  being  ratified  by  the  supervisors,  the  boundaries  and  descriptions  so 
made  shall  be  the  legal  boundaries  and  descriptions  of  the  districts  of  that 
county.  For  searching  and  transcribing  such  records  and  equalizing  district 
boundaries,  he  may  be  allowed  five  dollars  per  day  for  each  day's  labor,  to  be 
paid  out  of  the  county  school  fund.  The  county  sujoerintendent,  if  he  deem  it 
necessary  for  the  guidance  of  school  census  marshals,  may  order  the  descrip- 
tions of  the  district  boundaries  to  be  printed  in  pamj^hlet  form,  and  pay  for  the 
same  out  of  the  county  school  fund.  [New  section,  approved  March  28,  1874  ; 
AmendmeyUs  181S-4:,  91;  took  eject  fi'om  passage. 

1552.  Compensation  and  allowance  for  expenses. 

Sec.  1552.  Each  county  superintendent,  except  ■when  otherwise  provided  by 
statute,  shall  receive  such  salary  and  his  reasonable  traveling  expenses,  to  be 
estimated  by  the  board  of  supervisors,  and  as  may  be  allowed  by  the  board  of 
supervisors,  which  shall  be  paid  out  of  the  county  general  fund,  in  the  same 
manner  as  other  salaried  county  officers  are  paid;  provided,  that  such  compen- 
sation shall  not  be  less  than  a  sum  equal  to  twenty  dollars  for  each  school  dis- 
trict in  his  county,  exclusive  of  traveling  expenses,  and  that  he  shall  be  allowed, 
in  addition  to  his  salary,  a  sum  for  postage  and  expressage,  payable  out  of  the 
county  school  fund,  equal  to  one  dollar  for  each  school  district;  provided,  that 
in  incorjoorated  cities,  each  school  containing  three  hundred  pupils  should  be 
considered  equal  to  one  school  district.  [New  section,  approved  March  28,  1874; 
Amendments  1873-4,  91 ;  took  effect  from  passage. 

1553.  Supei-intendent,  when  not  to  teach. 

Sec.  1553.  No  school  superintendent  who  receives  an  annual  salary  of  fifteen 
hundred  dollars,  or  more,  must  follow  the  profession  of  teaching,  or  any  other 
avocation  that  can  conflict  with  his  duties  as  superintendent;  but  those  receiv- 
ing less  than  fifteen  hundred  dollars  per  annum  may  teach  in  the  public  schools 
of  this  state.  [Amendment,  approved  March  11,  1876;  Amendments  1875-6,  26; 
took  effect  immediately .^^^ 

ARTICLE  IV. 

teachers'  institutes. 

1560.  Institutes  to  he  held  annually  in  certain  counties. 

Sec.  1560.  Whenever  the  number  of  school  districts  in  any  county  is  twenty, 
or  more,  the  county  superintendent  must  hold  at  least  one  teachers'  institute  in 
each  year;  and  every  teacher  employed  in  a  public  school  in  the  county  must 
attend  such  institute  and  particijDate  in  its  proceedings.  [Amendmod,  approved 
March  28,  1874;  Amendments  1873-4,  92;  took  e feet  from  passage. ^^^ 

1561.  When  held  in  other  counties. 

Sec  1561.  In  any  county  in  which  there  are  less  than  twenty  school  districts, 
the  county  superintendent  may,  in  his  discretion,  hold  an  institute.  [Amend- 
ment, approved  March  28,  1874;  Amendments  1873-4,  92;  took  effect  from  passage.^"'' 

[a)  The  original  was  a  new  section  added  by  act  of  in  any  county  is  ten  or  more,  the  school  superintendent 

March  13, 1874 ;  Amendments  1873-4, 85;  took  affect  from  must  hold  at  least  one  teachers'  institute  in  each  year, 

passage.    It  was  numbered  section  1.5.52,  which  number  and  every  teacher  employed  in  a  public  school  in  the 

was  changed  by  the  amendatory  act  of  187G  to  section  county  must  attend  such  institute. 

1553.    It  did  not  have  the  last  clause  commencing  with  (c)   Original  section: 

the  words  "  but  those  receiving."  Sec.  1561.  In  any  coimty  in  which  there  are  less  than 

(6)  Original  section.  ten  school  districts,  the  superintendent  may  In  his 

Sec.  1560.  Whenever  the  number  of  school  districts  discretion  hold  an  iustitute. 

227 


lo(;2-l.-)TS  POLITICAL  CODE. 

1562.  Length  of  sessions. 

Sec.  15(!2.  Each  session  of  the  institute  must  continue  not  less  than  three  nor 
more  than  live  days. 

1563.  Pay  of  teachers  in  attendance. 

Sec.  15(;3.  When  the  institute  is  held  during'  the  time  that  teachers  are 
emi^loyed  in  teaching,  their  i)ay  must  not  be  diminished  by  reasou  of  their 
attendance. 

1564.  Krpenses  of  institute,  hoir  jMid. 

Sec  15G4.  The  county  superintendent  must  keeji  an  accurate  account  of  the 
actual  expenses  of  said  institute,  with  vouchers  for  the  same,  and  draw  his  war- 
rant on  the  unapportioned  county  school  fund  to  pay  said  amount;  provided, 
that  such  amount  must  not  exceed  one  hundred  dollars  for  any  one  year. 
[Amendnumt,  approved  March  28,  1874;  Amendments  1873-4,  92;  took  effect  from 
passage. ^*^ 

AKTICLE  V. 

SCHOOL   DISTKICTS. 

1575.  Xames  of  districts. 

Sec  1575.  Every  school  district  must  be  designated  by  the  name  and  stjle  of 

" district  (using  tlie  name  of  the  district),  of county"  (using  the  name 

of  the  county  in  which  such  district  is  situated);  and  in  that  name  the  trustees 
may  sue  and  be  sued,  and  hold  and  convey  property  for  the  use  and  benefit  of 
Buch  district.  A  number  must  not  be  used  as  a  part  of  the  designation  of  any 
school  district. 

1576.  What  forms  districts. 

Sec  157G.  Each  county,  city,  or  incoqiorated  town,  unless  subdivided  by  the 
legislative  authority  thereof,  forms  a  school  district. 

1577.  lormation  of  new  and  changing  boundnries  of  old  districts. 

Sec  1577.  No  new  district  can  be  formed  unless  the  parents  or  guardians  of 
at  least  fifteen  census  children,  resident  of  such  proj)osed  new  district,  and 
resiiling  at  a  greater  distance  than  two  miles  from  any  district  schoolhouse, 
})resent  a  i)etition  to  the  county  superintendent,  setting  forth  the  boundaries  of 
the  new  district  asked  for.  The  boundaries  of  any  district  cannot  be  changed, 
unless  at  least  ten  heads  of  families  residing  in  the  distx'ict  present  a  petition  to 
the  county  superintendent,  setting  foiih  the  change  of  boundaries  desired,  and 
the  reasons  for  the  same.  [Amendment,  ajyproved  March  20,  187G;  Amendment.'! 
1875-0,  27;  took  e feet  f-oiu  jjassage.^^''' 

1578.  JjiiticH  of  superintendent  on  receipt  of  petition  for  either. 

Si;c  1578.  After  giving  due  notice  to  all  parties  interested,  by  posting  notices 
in  three  pultlic  ])laces  in  the  district,  one  of  which  shall  be  at  the  door  of  the 
sclioolhousc'  for  at  least  one  week,  the  county  superintendent  must  transmit  the 
j)etition  to  the  board  of  supervisors,  with  his  approval  or  disappi'oval.  If  he 
ajjproves  the  petition,  he  may  note  such  changes  in  the  boundaries  as  he  may 

(a;  CJriplnal  i<«-<tloD:  lenpt  ten  hcndR  of  families  present  a  prtition  to  tlie 

Sec.  l.'fJJ.  For  the  iiaj'inciit  of  the  expeiiMR  of  Insli-  school  Buperintendent,  setting  fortli  the  boundaries  of 
tutes,  a  Kiiin  not  excuftiiun  oiic  liundred  dollurs  in  any  the  new  district  usked  for,  or  the  chsinge  of  boundaries 
one  y<  nr  niuht  be  jmld,  <  u  tl.e  Wi.rrant  of  the  tujier-  desired,  with  reasons  for  the  same. 
intendMil  of  em-h  county,  f.ut  of  the  uriai)i)ortloued  It  was  previously  amended  by  act  of  March  28,  1874, 
county  school  fund.  The  snperiniendentM  of  two  or  Aineudments  ls;;)-4,  92,  so  as  to  read  like  the  text,  ex- 
rn<  re  <<  unties  may  unite  and  lioM  a  joint  ins'itute.  In  cei)t  that  it  did  not  liave  the  words  "  and  residing  at  a 
which  cahe  the  expenses  must  be  apportic  ned  by  the  greater  distance  than  two  miles  from  any  district 
superintend*  ntfi  between  the  eountb  s  Ji  iniug  In  the  sdioolhouse  "  in  the  first  sentence.  In  the  sccoml  sen- 
institute,  tfeuce,  instead  of  "  in  the  district "  it  had  the  words 

(6)  Original  section:  "  at  a  greater  distance  than  two  milee  from  any  district 

Sec.  1R77.  No  new  district  can  be  formed,  nor  can  schoolhouse." 
the  boundaries  of  any  district  be  changed,  unless  at 

228 


EDUCATION.  1578-1595 

think  desirable.  [Amendmenl,  ajjproved  March  28,  1874;  Amendments  1873-4, 
93;  took  effect  from,  passage J"^ 

1579.  Duties  of  sit jjer visors  on  same. 

Sec.  1579.  The  board  of  suioervisors  must,  at  their  first  meeting  after  the 
receipt  of  the  joetition,  act  upon  the  same.  If  the  board  establishes  the  district, 
they  may  do  so  in  accordance  with  the  original  prayer  of  the  petition,  or  with 
such  modifications  as  they  choose  to  make.  [Amendment,  approved  March  28, 
1874;  Amendments  1^1  ^-A,  93;  took  effect  from  passage  }^^ 

1580.  New  district,  when  not  to  share  in  school  moneys. 

Sec.  1580.  No  new  district  formed  b}^  the  subdivision  of  an  old  one  is  entitled 
to  any  share  of  the  public  moneys  belonging  to  the  old  district  until  a  school 
has  fteen  actuall}'  commenced  in  such  new  district. 

1581.  Action  creating  new  distrncts  void  in  certain  events. 

Sec  1581.  Unless  within  four  months,  after  the  making  of  an  order  creating 
a  new  district,  school  is  oj^ened  therein,  the  order  will  cease  to  have  effect. 

1582.  New  district,  when  to  share  in  school  moneys — Apportionment,  Jioiv  made. 
Sec.  1582.  When  a  new  district  is  formed  by  the  division  of  an  old  one,  the 

school  superintendent  must,  after  j)ayment  of  debts,  divide  the  money  to  the 
credit  of  the  old  district  at  the  time  a  school  was  first  opened  in  the  new  dis- 
trict, and  such  as  may  afterwards  be  apportioned  to  the  old  district,  according 
to  the  number  of  children  resident  in  each  district,  for  which  p)urpose  he  may 
order  a  census  to  be  taken. 

AKTICLE  VI. 

elections  for  school  trustees. 

1593.  Election  of  trustees,  when  and  where. 

Sec.  1593.  An  election  for  school  trustees  must  be  held  in  each  district,  on 
the  last  Saturday  of  June  of  each  year,  at  the  district  schoolhouse,  if  there  is 
one;  and  if  there  is  none,  at  a  place  to  be  designated  by  the  board  of  trustees. 

1.  The  number  of  school  trustees  for  any  school  district  excej^t  where  city 
boards  are  otherwise  authorized  by  law,  shall  be  three; 

2.  In  new  school  districts,  or  in  case  of  a  vacancy  for  any  cause  in  an  old 
one,  the  school  trustees  shall  be  elected  to  hold  office  for  one,  two,  and  three 
years  resj)ectively  f rom  the  first  Satvirday  of  July  next  succeeding  their  election; 

3.  Except  as  provided  in  subdivision  second  of  this  section,  one  trustee  shall 
be  elected  annually,  to  hold  office  for  three  years,  or  until  his  successor  shall 
be  elected  and  qualified.  [Amendment,  approved  March  13,  1874;  Amendments 
1873-4,  80;  took  eff^ect  from  passage.'-"'' 

1594.  Elections  in  new  districts. 

Sec.  1594.  Within  thirty  days  after  the  formation  of  a  new  district  an  election 
must  be  held  for  trustees.  Any  three  electors  of  the  district  may  give  notice 
of  it  in  the  same  manner  as  notice  is  required  to  be  given  of  the  annual  election. 

1595.  Notices  of  election. 

Sec.  1595.  Not  less  than  ten  days  before  the  election  required  under  section 
fifteen  hundred  and  ninety-three,  the  trustees  must  post  notices  in  three  public 
places  in  the  district,  which  notices  must  specify  the  time  and  place  of  election, 
and  the  hours  during  which  the  polls  will  be  kept  open;  if  within  five  days  of 

(a)  Original  section:  (6)  The  original  section  had  the  words  "  same  and 

Sec.  1578.  After  giving  notice  to  all  parties  inter-  establish  the  district  "  instead  of  "  same.    If  the  board 

ested,  the  school  sui^erintendent  must  transmit  the  establishes  the  district,  they  may  do  so." 

petition  to  the  board  of  supervisors,  with  his  approval  (c)   The  original  section  did  not  have  either  of  the 

or  disapproval,  and  a  note  of  such   changes  iu  the  three  subdivisions,  and  had  the  word  "  April  "  instead 

boundaries  as  he  may  think  advisable  indorsed  thereon,  of  "  June." 

229 


1595-1611  POLITICAL  CODE. 

the  election  the  trustees  have  failed  to  post  the  notices  requii-ed  under  this  sec- 
tion, tljen  any  three  electors  of  the  district  may  give  notice  of  such  election. 
[Aviendmeut,  approird  JIarch  28,  187-4;  Amendments  1873-4,  93;  took  effect  from 
passage. ^^^ 

1596.  Judges  and  inspectors,  how  appointed. 

Sec.  1590.  The  trustees  must  a2:>point  the  inspector  and  judges  of  election; 
if  none  are  so  appointed,  or  if  they  are  not  present  at  the  time  for  opening  the 
polls,  the  electors  present  may  appoint  them. 

1597.  Opening  and  closing  polls. 

Six.  1597.  In  districts  in  which  the  number  of  children  between  five  and 
fifteen  years  of  age  exceed  five  hundred,  the  polls  must  be  ojoened  at  eight 
o'clock  A.  M.  and  kept  open  until  sundown;  in  other  districts  the  jjolls  must  not 
be  opened  before  nine  o'clock  a.  m.,  nor  closed  before  twelve  o'clock  m.,  nor 
kept  upen  less  than  one  hour. 

1598.  Who  may  vote. 

Sec  1598.  Every  elector  of  the  county  avIio  has  resided  in  the  district  for 
thirty  days  next  preceding  the  election  may  vote  thereat. 

1599.  Voting  must  be  by  ballot. 

Sec  1599.  The  voting  must  be  by  ballot;  provided,  that  the  provisions  of 
sections  eleven  hundred  and  eighty-seven  and  eleven  hundred  and  ninety-one 
may  be  dispensed  with.  [Amendment,  approved  March  28,  1874;  Amendments 
1873-4,  94;  toolc  effect  from  passage.'-^^ 

1600.  Challenges. 

Sec.  IGOO.  Any  person  offering  to  vote  may  be  challenged  by  any  elector  of 
the  district,  and  the  judges  of  election  must  thereupon  administer  to  the  person 
challenged  an  oath,  in  substance  as  follows:  "You  do  swear  that  you  are  a 
citizen  of  the  United  States,  that  you  are  twenty-one  years  of  age,  that  you 
have  resided  in  this  state  six  months  next  preceding  this  election,  and  in  this 
school  district  thirty  days,  and  that  you  have  not  before  voted  this  day."  If 
he  takes  the  oath  prescribed  in  this  section  his  vote  must  be  received,  otherwise 
his  vote  must  be  rejected.  [Amendment,  approved  March  28,  1874;  Amendments 
1873-4,  94;  took  effect  from  passage.^'^ 

1601.  Poll  lists. 

Sec.  IGOl.  A  poll  and  tally  list  must  be  kept  and  returned  to  the  board  of 
trustees. 

1602.  Cei-tificates  of  election. 

Sec  1G02.  The  officers  of  election  must,  after  counting  the  votes,  make 
and  deliver  cci-tificates  of  election  to  the  persons  elected,  a  copy  of  which,  with 
the  oath  of  office  attached,  must  be  forwarded  to  the  county  superintend- 
ent. [Amendment,  approved  March  28,  1874;  Amendments  1873-4,  94;  took 
effect  from  passage. '^'^'^ 

ARTICLE  VII. 

BOARDS    OF   TRUSTEES    OF  SCHOOL   DISTRICTS,  AND    CITY    BOARDS    OF    EDUCATION. 

1611.  School  district  to  he  under  control  of  three  trustees. 

Sec  IGll.  Except  when  othei'wise  authorized  by  special  statute,  every  school 
district  shall  be  under  tlie  control  of  a  board  of  school  trustees,  consisting  of 

(a)   OHkIdhI  fiectlon:  {h)  OrlRinal  section: 

Sec.  l.TO.').  Not  1<-hh  than  five  <l»yn  before  Ru'h  <■!<'<•-  Sec.  159'.).  The  voting  muFt  be  by  ballot. 

tlon  the  tniKti-ch  iiiuBt   jiont  ii'ifiicH   in  thri-i-  jmlilic  (c)   The  first  Bection  differed  in  the  last  sentence, 

pUces  in  the  district,  wlilrh  notii  i  k  iiiuht  sjiicify  tlie  wliicli  wag  as  follows:  "  If  he  refuses  to  take  the  oath 

time  and  place  of  i-leition.  and  the  hours  during  which  his  vote  must  be  rejected." 

the  I)o11b  will  be  kept  open.  (<Z)   The  original  section  did  not  have  the  last  clause 

couimeucing  with  the  words  "  a  copy  of  wUch." 

230 


EDUCATION.  1G11-1G17 

three  members.    [New  section,  ajyproved  3Iarch  28,  1874;  Amendments  1873-4, 
95;  took  ell'ectfrom  jMSsage. 

1612.  Trustees,  eXection  and  terms  of  office. 

Sec.  1612.  In  school  districts  newly  organized,  or  in  case  of  vacancies  for  any 
cause  in  an  old  one,  three  school  directors  must  be  elected,  to  hold  office  for 
one,  two  and  three  years,  respectively,  from  the  first  Saturday  in  July  next 
succeeding  their  election.  {New  section,  approved  March  28,  1874;  Amendments 
1873-4,  95;  took  effect  from  passage. 

1613.  Term  of  office. 

Sec  1G13.  The  term  of  office  of  school  trustees  is  three  years  from  the  first 
Saturday  in  July  next  succeeding  their  election. 

1614.  Vacancies,  how  filled. 

Sec.  1614.  Vacancies  in  office  of  school  trustees  must  be  filled  until  tlie  next 
annual  election  by  appointment  made  by  the  school  superintendent,  and  then  by 
election  for  the  unexpired  term. 

1615.  Trustees  of  old  hold  over  in  neio  districts. 

Sec  1615.  When  a  new  district  is  organized,  such  of  the  trustees  of  the  old 
as  reside  in  the  new  district  are  trustees  of  the  latter. 

1616.  Boards  of  education  provided  for  by  special  statutes. 

Sec.  1616.  Boards  of  education  are  elected  in  cities  nnder  the  provisions  of 
special  statutes,  and  their  powers  and  duties  are  as  prescribed  in  such  statutes, 
except  as  otherwise  in  this  chapter  provided. 

1617.  General  powers  of  boards  of  trustees  and  of  education. 

Sec.  1617.  The  powers  of  boards  of  trustees  of  school  districts,  and  of  boards 
of  education  in  cities,  are  as  follows: 

1.  To  i^rescribe  and  enforce  rules  not  inconsistent  with  law,  or  those  pre- 
scribed by  the  state  board  of  education,  for  their  own  government  and  the 
government  of  schools; 

2.  To  manage  and  control  the  school  property  within  their  districts; 

3.  To  purchase  school  furniture  and  apparatus,  and  such  other  things  as  may 
be  necessaiy  for  the  use  of  schools; 

4.  To  rent,  furnish,  repair,  and  insure  the  school  property  of  their  respective 
districts; 

5.  When  directed  by  a  vote  of  their  district,  to  build  schoolhouses,  or  to 
purchase  or  sell  school  lots; 

6.  To  make,  in  the  name  of  the  district,  conveyances  of  all  property  belonging 
to  the  district  and  sold  by  them; 

7.  To  emj^loy  the  teachers,  janitors,  and  employees  of  schools;  to  fix  and 
order  paid  their  compensation; 

8.  To  suspend  or  expel  pupils  for  misconduct; 

9.  To  exclude  from  schools  children  under  six  years  of  age; 

10.  To  enforce  in  schools  the  course  of  study  and  the  use  of  the  text-books 
prescribed  and  adopted  by  the  state  board  of  education; 

11.  To  ajDjioint  district  librarians,  and  enforce  the  rules  pi-escribed  for  the 
government  of  district  libraries; 

12.  To  exclude  from  schools  and  school  libraries  all  books,  publications,  or 
papers  of  a  sectarian,  partisan,  or  denominational  character; 

13.  To  furnish  books  for  the  children  of  parents  unable  to  furnish  them; 

14.  To  keep  a  register,  open  to  the  inspection  of  the  jjublic,  of  all  children 
applying  for  and  entitled  to  be  admitted  in  the  schools,  and  to  notify  the  parent 
or  guardian  of  such  children  when  vacancies  occur,  and  receive  such  children 
in  the  schools  in  the  order  to  which  they  are  registered; 

231 


1617-1G23  POLITICAL  CODE. 

15.  To  make  arrangements  with  the  trustees  of  any  adjoining  district  for  the 
atteuJance  of  such  children  in  the  school  of  either  district  as  may  be  best 
accommodated  therein,  and  to  transfer  the  school  moneys  due  by  apportionment 
to  such  children  to  the  district  in  which  they  may  attend  school; 

16.  On  or  before  the  lirst  day  of  June,  in  each  year,  to  appoint  a  school 
census  marshal,  Ad  notify  the  school  superintendent  thereof; 

17.  To  make  an  annual  report,  on  or  before  the  first  day  of  July,  to  the 
school  superintendent,  in  the  manner  and  form  and  on  the  blanks  prescribed 
by  the  superintendent  of  public  instruction ; 

18.  To  make  a  report,  whenever  required,  directly  to  the  superintendent  of 
public  instruction,  of  the  text-books  used  in  their  schools; 

19.  To  visit  every  school  in  their  district,  at  least  once  in  each  term,  and 
examine  carefully  into  its  management,  condition,  and  wants;  this  clause  to 
apply  to  each  and  every  member  of  the  board  of  trustees.  [Amendment,  ap- 
proved March  13,  1874;  Amendments  1873-4,  81;  took  effect  from  passage.^"-^ 

[Sec.  1618""  was  repealed  by  act  approved,  March  28,  1874;  Amendments 
1873-i,  111;  took  effect  from  passage.] 

1619.  Jlast  maintain  all  schools  for  equal  length  of  time. 

Sec.  1619.  The  boards  of  trustees  and  boards  of  education  must  maintain  all 
the  schools  established  by  them  for  an  equal  length  of  time  during  the  year, 
and  as  far  as  practicable  with  equal  rights  and  privileges. 

1620.  Stationery,  etc.,  to  be  furnished  to  pupils. 

Sec.  1620.  Writing  and  drawing  paper,  pens,  ink,  and  lead  and  slate  pencUs, 
for  the  use  of  the  schools,  must  be  furnished  under  the  direction  of  boards  of 
education  and  trustees,  and  charges  therefor  must  be  audited  and  joaid  as  other 
claims  against  the  school  fund  of  their  districts  are  audited  and  paid.  [Amend- 
menl,  approved  March  28,  1874;  Amendments  1873-4,  95;  took  effect  from 
passage. '''''' 

1621.  School  moneys,  how  used. 

Sec.  1621.  The  board  of  trustees  and  board  of  education  must  use  the  school 
moneys  received  from  the  state  or  county  apportionment,  exclusively,  for  the 
support  of  schools  for  that  school  year,  until  at  least  an  eight  months'  school 
shall  have  been  maintained;  if  at  the  end  of  any  year  there  is  an  unexpended 
balance,  it  may  be  used  for  the  payment  of  claims  against  the  district  outstand- 
ing, or  it  may  be  used  for  the  year  succeeding.  [Amendment,  approved  March 
28,  1874;  Amendments  1813^,  95;  took  effect  from  passage. '■'^'^ 

1622.  Same. 

Six.  1022.  Boards  of  trustees  may  use  the  county  school  moneys  for  any  of 
the  purposes  authorized  by  this  chapter;  but  all  state  school  moneys,  except  in 
those  cities  where  it  has  otherwise  been  expressly  provided  by  special  law, 
must,  except  the  ten  per  cent,  reserved  for  district  school  library  puriDoses,  be 
used  exclusively  for  the  payment  of  teachers. 

1623.  LinhilUies  ofl)oardii  of  trustees. 

Si.(j.  I<i23.  Boards  of  trustees  are  liable  as  such,  in  the  name  of  the  district, 
for  any  judgment  against  the  district  for  salary  due  any  teacher  on  contract,  and 

(a)  The  ori(fin«l  fic-ction  did  not  have  the  nineteenth  high  school  departments,  if  thorc  is  sufBcieut  means  to 

HiiliillviHlon,  and  differed  In  the  nliitli,  tenth,  twelfth,  maintain  all  three  departments;  and  if  not,  then  the 

n-viiit<-enth  and  eluhteeuth.     Thi-  ninth  cDnimenced  several  departments  must  be  maintained  in  the  order 

Willi  the  wordw,  ••  In  i-ltieH."    Th''  t<  nth  alter"  enforce"  herein  named. 

bad   tlie   words,   "  r-xcept  in   in.nrpdrated   cities  and  (<•)  The  original  section  down  to  and  including  the 

towns."    The  twelf  til  did  not  have  the  words  "  piirtisan  word  "  pencils  "  had  only  the  words  "  stationery,  pens, 

or  denominational."    The  Heveuteeiith  and  liiiliteeuth  ink  and  pencils." 

did  not  have  the  words  "  of  public  instruction."  (d)  The  original  section  after  "  apportionment  "  had 

[h)   Original  section:  the  words  "  during  any  school  year."     It  had  the  word 

Sec.  li;i«.  boards  of  truBt<?eB  and  boards  of  educa-  "but  "instead  of  the  words  "  imtil  at  least  an  eight 

tion  must  organize  bcUooIb  into  primary,  grammar,  and  months'  school  shall  have  been  maintained." 

232 


EDUCATION.  1623-1638 

for  all  debts  contracted  under  the  provisions  of  this  chapter,  and  they  must  pay- 
such  judgment  or  liabiHties  out  of  the  school  moneys  to  the  credit  of  such  dis- 
trict; provided,  that  the  contracts  mentioned  in  this  section  are  not  in  excess  of 
the  school  moneys  acciiiing  to  the  district  for  the  school  year  for  which  the 
contracts  are  made,  otherwise  the  district  shall  not  be  held  liable.  [Amendment, 
approved  llarch  28,  1874;  Amendments  1873-4,  95;  took  effect  from  passage  ^^ 

1624.  Liabilities  of  board  for  taxes,  etc. 

Sec.  1624.  If  any  board  of  trustees  or  of  education  fail  to  aj^point  a  census 
marshal  at  the  jDroper  time,  and  through  such  failure  the  district  is  omitted  in 
the  ajjpoi-tionment  of  school  moneys,  the  trustees  or  members  of  the  board  of 
education  are  jointly  and  severally  liable  to  the  district  for  the  full  amount  which 
the  district  would  have  received  but  for  such  failure,  and  the  amount  may  be 
recovered  in  an  action  brought  by  any  citizen  of  such  district  in  the  name  of 
and  for  the  benefit  of  the  district. 

ARTICLE  VIII. 

DISTKICT    CENSUS    MARSHALS. 

1634.  Duty  of  census  marshal. 

Sec  1634.  It  is  the  duty  of  the  census  marshal: 

1.  To  annually,  in  the  month  of  June,  take  a  census  of  all  children  in  his  dis- 
trict under  seventeen  years  of  age; 

2.  To  report  the  result  of  his  labors  to  the  county  superintendent  (or  to  the 
board  of  education,  in  cities),  before  the  first  day  of  July,  in  each  year; 

3.  He  shall  visit  each  habitation,  house,  residence,  domicile  or  other  place  of 
abode  in  his  district,  and  by  actual  observation  and  interrogation,  enumerate  the 
census  children  of  the  same.  [Amendment,  ap^woved  March  28,  1874;  Amend- 
ments ISl'i-'i:,  96;  took  effect  from  passage  y°^ 

1635.  Where  district  in  two  counties. 

Sec.  1635.  Whenever  a  district  is  formed,  lying  partly  in  two  adjoining 
counties,  the  census  marshal  must  report  to  each  county  superintendent  the 
nu}nber  of  children  in  each  county.  [Amendment,  approved  llarch  28,  1874; 
Amendments  1873-4,  96;  took  effect  from  p)assage^''^ 

1636.  Report. 

Sec.  1636.  His  report  must  be  made  under  oath,  upon  blanks  furnished  by 
the  superintendent  of  public  instruction,  and  must  show: 

1.  The  number,  age,  sex,  color,  and  nationality  of  children  listed; 

2.  The  names  of  the  parents  of  such  children; 

3.  Such  other  facts  as  the  superintendent  of  public  instruction  may  designate. 
[Amendment,  approved  March  28,  1874;  Amendments  1^1^-4,,  96;  took  efect  from 
passage.''^'' 

1637.  Children  absent  at  school  to  be  listed. 

Sec.  1637.  He  must  include  in  his  report  all  children  (Avhose  parents  or  guar- 
dians are  residents  of  the  district)  that  are  absent  attending  institutions  of 
learning. 

1638.  Children  of  non-residents  not  to  be  included. 

Sec  1638.  He  must  not  include  in  his  report  children  who  are  attending  in- 

(a)  The  original  section  did  not  have  the  proviso.  (rf)    The   original   section   had   the   words  "school 

(b)  The  original  section  did  not  have  the  third  sub-  superintendent "  instead  of  "  superintendent  of  public 
division.  In  the  first  it  had  the  word  "  fifteen  "  instead  instruction,"  where  it  first  occurs.  In  the  second  sub- 
of  "seventeen,"  and  in  the  second  it  had  the  word  division  after  the  word  "parents"  it  had  "or  guar- 
" school"  instead  of  "  county."  dians."    In  the  third   subdivision  it   had  the  words 

(c)  The  original  section  had  the  words  "school  "  board  of  education  "  instead  of  "  superintendent  of 
superintendent"  instead  of  "county  superintendent,  public  instruction." 

the  number  of  children  in  each  county." 

233 


1638-1663  POLITICAL  CODE. 

stitutions  of  learning,  or  such  benevolent  institutions  as  deaf  and  dumb,  blind 
and  oii^bau  asylums,  in  bis  district,  but  whose  jDarents  or  guardian  do  not  reside 
therein.  [Amendment,  approved  March  28,  1874;  Amendments  1873-4,  97;  took 
effect  from  passage .^"^ 

1639.  Compensation  of  marshal. 

Sec.  1639.  The  comi:>ensation  of  census  marshals  must  be  audited  and  paid 
as  other  claims  upon  the  school  fund  of  the  district  are  audited  and  paid. 

1640.  Neglect  or  refusal  of  census  marshal  to  report  a  misdemeanor. 

Sec.  1640.  If  the  census  marshal  neglects  or  refuses  to  make  his  report  at  tlie 
time  and  in  the  manner  herein  required,  or  to  perfoim  any  other  duty  devolved 
upon  him,  he  must  be  deemed  guilty  of  a  misdemeanor,  and  on  conviction,  be 
punished  by  fine  or  imprisonment.  [New  section,  approved  March  13,  1874; 
Amendments  1873-4,  85;  too/c  effect  from  passage. 

AKTICLE  IX. 

CLERKS    OF    SCHOOL   DISTRICTS. 

1649.  WJtrn  and  lioio  elected. 

Sec.  1649.  Boards  of  trustees  must  annually,  on  the  first  Saturday  of  July, 
meet  and  elect  one  of  their  number  clerk  of  the  district. 

1650.  Ge)teral  duties  of. 

Sec.  1650.  It  is  the  duty  of  the  clerk: 

1.  To  act  as  clerk  of  the  board,  and  keep  a  record  of  their  proceedings; 

2.  To  keep  an  account  of  the  receipts  and  expenditures  of  school  moneys; 

3.  To  keep  his  records  and  accounts  open  to  the  inspection  of  the  electors  of 
the  district; 

4.  To  perfoiTn  such  other  duties  as  may  be  prescribed  by  the  board. 

1651.  TT7/en  to  provide  supplies,  etc. 

Sec  1651.  The  clerk  of  each  district  must,  under  the  direction  of  the  board 
of  trustees,  provide  all  school  suj^plies  authorized  by  this  chapter,  and  keep*  the 
schoolhouse  in  repair  during  the  time  school  is  taught  therein. 

1652.  Wlien  to  act  as  marshal,  assessor,  or  collector. 

Sec.  1652.  The  clerk  may  act  as  assessor,  or  collector,  or  as  both,  of  district 
taxes,  in  either  of  which  cases  he  must  be  paid  the  same  compensation  which 
would  have  been  allowed  by  the  board  to  any  other  person. 

ARTICLE  X. 

SCHOOLS. 

1662.  Who  may  be  admitted  to. 

Sec.  1662.  Every  school,  unless  otherwise  provided  by  special  statute,  must 
be  open  for  the  admission  of  all  white  children  between  five  and  twenty-one 
years  of  age  residing  in  tlie  district,  and  the  board  of  ti-ustees  or  board  of  edu- 
cation Imve  power  to  admit  adults  and  children  not  residing  in  the  district, 
whenever  good  reasons  exist  therefor. 

1663.  Schools  to  be  graded. 

Sfx'.  1663.  All  schools,  unless  otherwise  provided  by  special  statute,  must  be 
divided  in  fii-st,  second,  and  third  grade.  Each  county  superintendent  must, 
under  instructions  from  the  state  board  of  education,  deterujine  the  respective 

(a)  The  original  Kcrtion  diil  not  have  the  wordB  "  or  guch  benevolent  iustitutione  as  deaf  and  dumb,  blind  and 
orphan  aeylums." 

234 


EDUCATION.  1663-1673 

grade. or  class  of  schools  in  his  county.     [Aynendment,  approved  March  28,  1874; 
Amendments  1873-4,  97;  took  effect  from  passage}"^ 

1664.  To  he  taught  in  the  English  language. 

Sec.  1664.  All  schools  must  be  taught  in  the  English  language. 

1665.  Instruction,  branches  in. 

Sec.  1665.  Instruction  must  be  given  in  the  following  branches  in  the  several 
grades  in  which  each  may  be  required,  viz. :  Reading,  writing,  orthography, 
arithmetic,  geography,  grammar,  history  of  the  United  States,  j)hysiology, 
natural  philosophy,  natural  history,  elements  of  form,  vocal  music  and  indus- 
trial drawing.  [Amendment,  approved  March  28,  1874;  Amendments  1873-4, 
111;  took  effect  from  passage. ^'^'' 

1666.  Other  studies. 

Sec.  1666.  Other  studies  may  be  authorized  by  the  state  board  of  education, 
or  board  of  education  of  any  city  or  city  and  county,  but  no  such  studies  can 
be  pursued  to  the  neglect  or  exclusion  of  the  studies  in  the  j)receding  section 
specified. 

1667.  Instruction  in  manners,  etc. 

Sec  1667,  Instruction  must  be  given  in  all  grades  of  schools,  and  in  all 
classes,  during  the  entire  school  course,  in  manners  and  morals. 

1668.  Physical  exercise,  etc. 

Sec.  1668,  Attention  must  be  given  to  such  physical  exercises  for  the  pupils 
as  may  be  conducive  to  health  and  vigor  of  body  as  well  as  mind,  and  to  the 
ventilation  and  temperature  of  school-rooms. 

1669.  Schools  for  Negro  and  Indian  children. 

Sec  1669.  The  education  of  children  of  African  descent,  and  Indian  children, 
must  be  jirovided  for  in  separate  schools;  provided,  that  if  the  directors  or 
trustees  fail  to  provide  such  separate  schools,  then  such  children  must  be  ad- 
mitted into  the  schools  for  white  children.  [Amendment,  approved  March  28, 
1874;   Amendments  1873-4,  97;   took  effect  from  passage.'-''^ 

1670.  How  established. 

Sec  1670.  Upon  the  written  application  of  the  parents  or  guardians  of  such 
children  to  any  board  of  trustees  or  board  of  education,  a  separate  school  must 
be  established  for  the  education  of  such  children. 

1671.  Governed  by  same  rules  as  schools  for  tvhites. 

Sec  1671.  The  same  laws,  rules,  and  regulations  which  apply  to  schools  for 
white  children  apply  to  schools  for  colored  children. 

1672.  Sectarian  books  and  teachings  prohibited. 

Sec  1672.  No  jDublication  of  a  sectarian,  partisan,  or  denominational  char- 
acter must  be  used  or  distributed  in  any  school,  or  be  made  a  part  of  any  school 
library;  nor  must  any  sectarian  or  denominational  doctrine  be  taught  thei'ein. 
Any  school  district,  town,  or  city,  the  officers  of  which  knowingly  alloAv  any 
schools  to  be  taught  in  violation  of  these  provisions,  forfeits  all  right  to  any 
state  or  county  apportionment  of  school  moneys;  and,  upon  satisfactory  evi- 
dence of  such  violation,  the  superintendent  of  public  instruction  and  school 
superintendent  must  withhold  both  state  and  county  apportionments. 

1673.  Duration  of  daily  sessions. 

Sec  1673.  No  school  must  be  continued  in  session  more  than  six  hours  a 
day;  and  no  pupil  under  eight  years  of  age  must  be  kept  in  school  more  than 

(a)    The  original  section    had  the  words   "school  (6)  The  original  section  did   not  have  the  -words 

superintendent "  instead  of  "  county  superintendent."     "  elements  of  form." 

(c)  The  original  section  did  not  have  the  proviso. 

235 


1673-1687  POLITICAL  CODE. 

foui-  hours  per  Jay.  Any  violatiou  of  the  provisions  of  this  section  must  be 
treated  in  the  same  manner  as  a  viohition  of  the  provisions  of  the  preceding 
section. 

ARTICLE  XI. 

PUPILS , 

1683.  Pupih,  hoic  admUlcd. 

Seo.  1G83.  Pupils  must  be  admitted  into  the  schools  in  the  order  in  which 
they  apply  to  be  registered. 

1684.  M'(s(  submit  lo  regulations. 

Sec.  1684.  All  pupils  must  comply  with  the  regulations,  pursue  the  required 
coui-se  of  study,  and  submit  to  the  authority  of  the  teachers  of  such  schools. 

1685.  Suspension  and  expulsion  of. 

Sec.  1685.  Continued  willful  disobedience  or  open  defiance  of  the  authority 
of  the  teacher  constitutes  good  cause  for  expulsion  from  school;  and  habitual 
profanity  and  vulgarity  good  cause  for  suspension  from  school. 

1686.  Defacing  school  property,  liability  for . 

Sec.  1686.  Any  pupil  who  cuts,  defaces,  or  otherwise  injures  any  school- 
house,  fences,  or  outbuildings  thereof,  is  liable  to  suspension  or  exj^ulsion, 
and,  on  the  complaint  of  the  teacher  or  trustees,  the  parents  or  guardians  of 
such  pupils  shall  be  liable  for  all  damages.  [Amendment,  approved  March  28, 
1874;  Amendments  ISld—k,  112;  took  effect  from pjassagey 

1687.  Experienced  teachers  for  beginners. 

Sec.  1687.  In  cities  having  graded  schools  beginners  shall  be  taught,  for  the 
first  two  years,  by  teachers  who  have  had  at  least  four  years'  experience;  and 
such  teachers  shall  rank,  in  })oint  of  salary,  Avith  those  of  first  grade. 

Au  Act  to  enforce  the  educational  rights  of  childreu. 

Approved  March  28,  1871;  1873-1,  751. 

Children  to  be  sent  to  school. 

Section  1.  Every  parent,  guardian,  or  other  person  in  the  State  of  California 
having  control  and  charge  of  any  child  or  children  between  the  ages  of  eight  and 
fourteen  years,  shall  be  required  to  send  any  such  child  or  children  to  a  public 
school  for  a  period  of  at  least  two  thirds  of  the  time  during  which  a  public 
school  shall  be  taught  in  each  city,  or  cit}'^  and  county,  or  school  district,  in 
each  school  j'ear,  commencing  on  the  first  day  of  July,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  seventy-four,  at  least  twelve  weeks 
of  which  shall  be  consecutive,  unless  such  child  or  children  are  excused 
from  such  attendance  by  the  board  of  education  of  the  city  or  city  and 
county,  or  of  the  trustees  of  the  school  district  in  which  such  parents, 
guardians,  or  other  persons  reside,  upon  its  being  shown  to  their  satisfac- 
tion that  his  or  her  bodily  or  mental  condition  has  been  such  as  to  prevent 
attendance  at  school,  or  aitplication  to  study  for  the  period  required,  or  that 
the  parents  or  guardians  are  extremely  poor  or  sick,  or  that  such  child  or 
children  are  taught  in  a  private  school,  or  at  home,  in  such  branches  as  are 
usually  taught  in  the  primary  schools  of  this  state,  or  have  already  acquired  a 
good  knowledge  of  such  branches;  provided,  in  case  a  public  school  shall  not 
be  taught  for  tlnce  months  during  the  year,  within  one  mile  by  the  nearest 
traveled  road,  of  the  residence  of  any  person  within  the  school  district,  he  shall 
not  be  liable  to  the  i)roviHions  of  this  act. 
Ifotice  of  law. 

Sec  2.  It  shall  be  the  duty  (if  the  president  of  each  board  of  education,  and 

(a)  TUe  ori(,'iual  suction  did  not  Luvt-  the  luHt  cluuiie  riuniuouciug  witli  the  wurdu  "  aud,  on  the  complaint. " 

236 


EDUCATION.  1G87 

of  the  clerk  of  each  board  of  district  trustees  in  the  State  of  California,  to  cause 
to  be  posted  three  notices  of  this  law  in  the  most  public  i)laces  in  the  citj,  or 
city  and  county,  or  in  the  school  district,  or  published  in  one  newspaper  therein 
for  three  weeks,  in  the  month  of  June,  in  each  year,  the  expense  of  each  publi- 
cation to  be  paid  out  of  the  school  funds  of  such  city,  or  city  and  county,  or 
school  district,  as  the  case  may  require. 

Misdemeanor. 

Sec.  3.  In  case  any  parent,  guardian,  or  other  j^erson  shall  fail  to  comply 
with  the  provisions  of  this  act,  said  parent,  guardian,  or  other  person  shall  be 
deemed  guilty  of  a  misdemeanor,  and  shall  be  liable  to  a  fine  of  not  more  than 
twenty  dollars;  and  for  the  second  and  each  subsequent  offense  the  fine  shall 
not  be  less  than  twenty  dollars  nor  more  than  fifty  dollars;  and  the  parent, 
guardian,  or  other  person  so  convicted,  shall  pay  all  costs.  Each  such  fine  shall 
be  paid  to  the  clerk  of  the  projoer  board  of  education,  or  of  the  district  trustees. 
Pi-osecutions. 

Sec.  4.  And  it  shall  be  the  duty  of  the  clerk  of  each  board  of  education  and 
of  each  board  of  district  trustees,  on  complaint  of  any  teacher  or  taxpayer,  to 
prosecute  all  oifenses  occurring  under  the  j^rovisions  of  this  act;  and  any  clerk 
neglecting  to  prosecute  such  ofiense  within  ten  days  after  a  written  notice  has 
been  served  on  him  by  any  teacher  or  taxpayer  within  the  limits  of  the  authority 
of  said  board,  unless  the  person  so  complained  of  shall  be  excused  by  the 
proper  school  board,  shall  himself  be  liable  to  a  fine  of  not  less  than  twenty 
dollars  nor  more  than  fifty  dollars,  which  fine  shall  be  prosecuted  for  in  the 
name  of  the  people  of  the  State  of  California,  and  the  fine  so  collected  shall  be 
paid  over  to  the  clerk  of  the  board  of  education  or  trustees  of  the  proper  city, 
or  city  and  county,  or  school  district,  to  be  accounted  for  as  in  section  three  of 
this  act;  and  in  case  such  prosecution  fail,  the  expenses  thereof  shall  be  paid 
out  of  the  school  fund  of  the  city,  or  city  and  county,  or  school  district,  in 
which  the  case  arose. 

Lists  and  reports. 

Sec.  5.  And  it  shall  be  the  duty  of  the  census  marshal  to  furnish  each  board 
of  education  and  of  district  trustees,  with  a  complete  list  of  all  children  living 
within  the  jurisdiction  of  said  board,  and  to  note  on  such  lists  all  children  not 
attending  colleges,  college  schools,  private  schools,  or  being  taught  at  home, 
who  are  liable  to  the  provisions  of  this  act;  and  each  teacher  teaching  within 
the  limits  of  the  jurisdiction  of  such  board,  shall  be  supplied  with  a  list  of  all 
children  within  his  or  her  department  or  school,  and  shall  call  such  list  each 
morning  on  the  oi^ening  of  school,  and  note  the  absentees,  and  the  reason  of 
such  absence,  if  any,  and  at  the  close  of  each  term  of  twelve  weeks,  shall  make 
a  full  report  to  the  board  of  education,  or  of  district  trustees,  of  all  such  cases 
of  absence,  with  the  names  both  of  children  and  parents,  guardians,  or  other 
persons  having  such  children  in  charge,  and  said  board  shall  thereupon  forth- 
with proceed  to  i^rosecute  such  parents,  guardians,  or  other  persons,  according 
to  the  provisions  of  this  act. 
JDeaf,  dumb,  and  blind. 

Sec  6.  And  whereas,  the  state  has  provided  an  institution  for  the  gi-atuitous 
instruction  of  all  resident  deaf  and  dumb  or  blind  children  between  the  ages  of 
six  and  twenty-one  years,  every  parent  or  guardian  of  any  child  or  children 
affiicted  with  deafness  or  blindness,  shall  be  required,  under  the  penalties 
hereinbefore  si^ecified,  to  send  such  child  or  children  to  said  institution  for  a 
period  of  not  less  than  five  years,  unless  such  child  or  children  shall  have  been 
excused  by  the  authorities,  and  on  the  grounds  specified  in  section  one  of  this 
act. 

237 


1687-1699  POLITICAL  CODE. 

Jurisdiction. 

Sec.  7.  Any  justice  of  the  peace  of  the  proper  city,  or  city  and  county,  or 
school  district,  shall  have  jurisdiction  of  all  offenses  committed  under  the  pro- 
visions of  this  act. 

Sec.  8.  This  act  sliall  be  in  force  and  effect  from  and  after  the  first  day  of 
July,  ei^'hteeu  hundred  and  seventy-four. 

ARTICLE  XII. 

TE.\CUERS. 

1696,  General  duties  of  teachers. 

Sec  1696.  Every  teaclier  in  the  public  schools  must: 

1.  Before  assuming  charge  of  a  school,  file  his  certificate  with  the  county 
superintendent; 

2.  On  taking  charge  of  a  school,  or  on  closing  a  term  of  school,  immediately 
notify  the  county  superintendent  of  such  fact; 

3.  Enforce  the  course  of  study,  the  use  of  text-books,  and  the  rules  and 
regulations  jirescribed  for  schools; 

4.  Hold  pupils  to  strict  account  for  disorderly  conduct  on  the  way  to  and 
from  school,  on  the  play-grounds,  or  during  recess;  suspend  for  good  cause 
any  pupil  in  the  school,  and  re^iort  such  suspension  to  the  board  of  trustees  or 
education  for  review.  If  such  action  is  not  sustained  by  them  the  teacher  may 
appeal  to  the  county  superintendent,  whose  decision  shall  be  final; 

5.  Keep  a  state  school  register; 

6.  Make  an  annual  report  to  the  county  superintendent  at  the  time,  and  in 
the  manner,  and  on  the  blanks  prescribed  by  the  superintendent  of  public 
instruction.  Any  school  teacher  who  shall  end  any  school  term  before  the 
close  of  the  school  3'ear,  shall  make  a  report  to  the  county  superintendent 
immediately  after  the  close  of  such  term;  and  any  teacher  who  may  be  teaching 
any  school  at  the  end  of  the  school  year,  shall,  in  his  or  her  annual  report, 
include  all  statistics  for  the  entire  school  year,  notwitlistanding  any  j)reviouB 
report  for  a  part  of  the  year; 

7.  Make  such  other  reports  as  may  be  reqxiired  by  the  suj^erintendent  of 
public  iustniction,  county  superintendent,  or  board  of  trustees  or  education. 
[Amejidmeiit,  approved  March  28,  1874;  Amendments  1873-4,  98;  took  effect  from 
paasafje .'"'' 

1697.  School  month  in  relation  to  salary  of  teachers  defined. 

Sec.  1697.  A  school  month  is  construed  and  taken  to  be  twenty  school  days, 
or  four  weeks  of  five  school  days  each. 

1693.  Ajipecd  alloiced  from  order  removing  teacher  for  incompetency . 

Sec,  1698.  In  case  of  the  dismissal  of  any  teacher  before  the  expiration  of 
any  written  contract  entered  into  between  such  teacher  and  board  of  trustees, 
for  alleged  unfitness  or  incompetence  or  violation  of  rules,  the  teacher  may 
appeal  to  the  school  superintendent,  and  if  the  superintendent  decides  that  the 
removal  was  made  without  good  cause,  the  teacher  so  removed  must  be  rein- 
stated. 
1699.   Appeals  in  other  rases. 

Sec.  1099.  Any  teac-lior  whose  salary  is  withheld  may  appeal  to  the  superin- 
tendent of  public  instruction. 

(a)  ThfMjriKlniil  Bcctlon (11(1  not  hnw  cithir the  flrnt  fourth  did  not  have  the;  word  "  public,"  nor  the  last 

oriieronil  BuMlvlHion,  and  th.-  oth<TK  wen-  iiuiiibind  Bcntcncf   c-oiniiir-ncinK,   "any   school   tfacher."     The 

from  onr-  to  t\w<.  Ui,Umi\-,-.    The  ftrst  KUl>divlKi.in  di.l  fifth  did  not  havo  the  words  "  Buperintendeut  of  public 

Dot  have  the  word  "  Uxi."    Th<:  w.cond  did  not  havt-  Instruction,  county." 
thelut  sentence  commencing,  "  by  such  action."   Tlic 

238 


EDUCATION.  1700-1702 

1700.  No  warrant  to  be  drawn  in  favor  of  teacher,  unless  he  performs  his  duty. 
Sec.  1700.  No  warrant  must  be  drawn  in  favor  of  any  teaelior,  unless  the 

officer  whose  duty  it  is  to  draw  such  warrant  is  satisfied  that  the  teacher  has 
faithfully  performed  all  the  duties  prescribed  in  section  sixteen  hundred  and 
ninety-six.  [Amendment,  approved  March  28,  1874  ;  Amendments  1873-4,  99  ; 
took  effect  from  passage.  ^** 

1701.  Nor  unless  he  hold  certificate,  and  was  emplorjed. 

Sec  1701.  No  warrant  must  be  drawn  in  favor  of  any  teacher,  unless  such 
teacher  is  the  holder  of  a  proper  certificate,  in  force  for  the  full  time  for  which 
the  warrant  is  drawn,  nor  unless  he  was  enij)loyed  by  the  board  of  tiiistees  or 
education;  provided,  that  nothing  in  this  section  shall  interfere  with  any  special 
school  laws  now  in  existence  for  the  counties  of  Trinity,  Shasta,  or  Inyo. 
[Amendment,  approved  March  28,  1874;  Amendments  1873-4,  99;  took  ejfect  from 
passage.  '"' 

1702.  Duties  of  teachers  as  to  instructions. 

Sec.  1702.  It  shall  be  the  duty  of  all  teachers  to  endeavor  to  impress  on  the 
minds  of  the  pupils  the  principles  of  morality,  truth,  justice  and  patriotism;  to 
teach  them  to  avoid  idleness,  profanity,  and  falsehood,  and  to  instnict  them  in 
the  i^rinciples  of  a  free  government,  and  to  train  them  up  to  a  tiiie  comprehension 
of  the  rights,  duties,  and  dignity  of  American  citizenship.  [New  section,  ap- 
proved March  28,  1874;  Amendments  1873-4,  99;  took  effect  from  passage. 

An  Act  concerning  the  employment  of  teachers  in  the  iDiiblic  schools  in  the  counties  of  Trinity 
and  Shasta. 

Approved  March  18,  1874;  1873-4,  472. 

Qualifications  of  teachers.  ^ 

Section  1.  The  board  of  trustees  of  any  of  the  public  schools  in  the  counties 
of  Trinity  and  Shasta,  where  there  are  less  than  twenty-one  school  children  in 
the  school  district,  are  hereby  authorized  to  employ  any  suitable  person  to  teach 
in  their  districts,  not  having  the  legal  certificate  of  a  teacher,  Avhenever  a 
majority  of  the  parents  or  guardians  of  children  in  their  districts  shall  so  peti- 
tion. [Amendment,  approved  March  3,  1876;  1875-6,  122;  took  effect  sixtieth  day 
after  passage. 

Official  duties  not  to  be  invalidated. 

Sec.  2.  The  emjDloyment  of  such  teachers  in  any  districts  in  said  counties 
shall  not  operate  to  prevent  the  apportionment  thereto  of  any  state  or  county 
moneys  which  would  otherwise  be  so  apportioned;  and  the  superintendents  of 
public  schools,  and  the  county  treasurers  of  said  counties,  are  hereby  directed, 
in  their  respective  duties,  to  apportion  moneys,  draw  warrants,  pay  the  same, 
and  do  all  other  acts  that  they,  in  their  official  capacities,  would  be  required  to 
do  if  said  schools  had  teachers  holding  legal  certificates.  [Amendment,  approved 
March  3,  1876;  1875-6,  122;  took  effect  sixtieth  day  after  passage. 

Sec  3.  All  acts  or  parts  of  acts,  so  far  as  they  conflict  with  this  act,  are  here- 
by repealed,  and  this  act  shall  take  effect  and  be  in  force  from  and  after  its 
passage.  [Amendment,  approved  March  d,  1876;  1875-6,  122;  took  effect  sioctieth 
day  after  passage. 

An  Act  concerning  the  employment  of  teachers  in  Inyo  and  Mono  counties. 
Approved  March  20,  1874;  1873-4,  509. 

Teachers  without  certificates. 
Section  1.  The  board  of  trustees  of  any  school  district  in  the  counties  of  Inyo 

(a)  The  original  section  had  the  words  "his  duties"  (6)   The  original  section  did  not  have  the  words  "for 

instead  of  "  all  the  duties  prescribed  in  section  1696."     the  full  time  for  which  the  warrant  is  drawn,"  nor  the 

proviso, 

239 


1702-1717  POLITICAL  CODE. 

and  :Mono  shall  liave  power  to  employ  a  teaclaer  or  teachers  not  holding  the 
requisite  legal  certificate,  wlienever  a  majority  of  the  parents  and  guardians  of 
children  attending  such  school  shall  so  petition,  and  whenever  the  services  of 
satisfactory  applicants  holding  such  certificates  cannot  be  obtained. 

School  moneys. 

Sec  2.  The  employment  of  such  teachers  in  any  district  in  said  counties,  shall 
not  operate  to  prevent  the  apportionment  thereto  of  any  state  or  county  moneys 
which  would  otherwise  be  so  apportioned. 

Sec  3.  This  act  shall  take  efiect  from  and  after  its  passage. 

An  Act  to  preveut  discriiiiiiiatioii  against  femele  teachers. 

Approved,  March  30,  1874;  1873-4,938. 

Female  teachers  to  receive  same  compensation  as  males. 

Section  1.  Females  employed  as  teachers  in  the  public  schools  of  this  state 
shall  in  all  cases  receive  the  same  compensation  as  is  allowed  male  teachers  for 
like  senices  when  holding  the  same  grade  certificates. 

Sec.  2.  This  act  shall  take  effect  and  be  in  force  from  and  after  its  passage. 

AKTICLE  XIII. 

DISTRICT     LIBRARIES. 

1712.  Lxhrarijfund,  hoiv  expended. 

Sec.  1712.  The  boards  of  trustees  and  of  education  must  expend  the  librarj^ 
fund,  together  with  such  moneys  as  may  be  added  thereto  by  donation,  in  the 
purchase  of  school  apparatus  and  books  for  a  school  library.  [Amendment, 
approved  March  28,  187-4;  Amendments  1873-4,  99;  took  effect  from  passage. 

1713.  Of  what  fund  consists. 

Sec.  1713.  Except  in  cities  not  divided  into  school  districts,  the  libraiy  fund 
consists  of  ten  per  cent,  of  the  state  school  fund  annually  apportioned  to  the 
district,  unless  ten  per  cent,  exceeds  fifty  dollars,  in  which  event  it  consists  of 
fifty  dollars  annually  taken  from  the  fund  so  ai)portioned. 

1714.  Same. 

Sec  1714.  In  cities  not  divided  into  school  districts  the  library  fund  consists 
of  the  sum  of  fifty  dollars  for  every  five  hundred  children  between  the  ages  of 
five  and  fifteen  years,  annually  taken  from  the  state  school  fund  apportioned  to 
the  city. 

1715.  Control  and  location  of  library. 

Sec  1715.  Libraries  are  under  the  control  of  the  board  of  trustees  or  educa- 
tion, and  must  be  kept  when  practicable  in  the  schoolhouses. 

1716.  TI7/0  may  use. 

Sec  1710.  The  library  is  free  to  all  pupils  of  a  suitable  age  belonging  to  the 
school,  and  any  resident  of  the  district  may  become  entitled  to  its  i)rivileges  by 
the  payment  of  such  a  sum  of  money  for  life  membership  or  such  annual  or 
monthly  fee  as  may  be  prescribed  by  the  trustees. 

1717.  Trustees,  power  and  responsibility  as  to  libraries. 

Sec.  1717.  The  trustees  shall  be  held  accountable  for  the  proper  care  and 
preservation  of  the  librarj',  and  shall  have  power  to  assess  and  collect  all  fines, 
penalties,  and  fees  of  membership,  and  to  make  all  needful  rules  and  regula- 
tions not  provided  for  by  the  state  board  of  education,  and  not  inconsistent 
therewitli,  and  tliey  shall  report  annually  to  the  county  superintendent,  all 
librarj'  statistics  whi(;h  may  be  rerpiired  by  the  blanks  furnished  for  the  purpose 
by  the  superintendent  of  puljlic  instruction.  [Neio  section,  approved  March  28, 
1874;  Amendments  1873-4,  100;  took  effect  from  passage. 

240 


EDUCATION.  172G-1747 

ARTICLE  XIV. 

EDUCATIONAL     JOURNAL. 

1726.  [Secs.  172(1,  1727,  1728,  1729,  1730,  cand  1731'"'  were  repealed  by  act 
approved  April  1,  1876;  Amendments  1875-G,  27;  took  effect  from  passage.] 

ARTICLE  XV. 

STATE    BOARD    OF    EXAMINATION. 

1741.  Hoto  composed. 

Sec.  1741.  The  state  board  of  examination  consists  of  the  superintendent  of 
public  instruction  and  four  teachers  holding  state  educational  diplomas  ap- 
pointed by  him. 

1742.  Chairman. 

Sec.  1742.  The  superintendent  of  public  instruction  is  chairman  of  the  board. 

1743.  3Iee(wgs. 

Sec.  1743.  The  board  must  meet  at  such  times  and  places  as  the  chairman 
directs,  and  must  hold  at  least  two  sessions  in  each  year. 

1744.  General  poioers  of  hoard  of  examination. 
Sec.  1744.  The  board  has  power  to  grant: 

1.  Recommendations  for  life  diplomas; 

2.  State  educational  diplomas,  valid  for  six  years; 

3.  State  certificates  of  the  first  grade,  valid  for  four  years; 

4.  Certificates  of  the  second  grade,  valid  for  three  years; 

5.  State  certificates  of  the  third  grade,  valid  for  two  years,  to  be  granted  only 
to  females; 

6.  To  review  on  appeal  an  order  revoking  a  county  or  city  certificate.  [Amend- 
ment, approved  March  28,  1874;  Amendments  1873-4,  100;  took  effect  from  pas- 
sage.'-^^ 

1745.  .Limitations  on  power  to  issue  life  diplomas. 

Sec.  1745.  The  life  diploma  must  be  issvied  to  such  persons  only  as  have 
been  engaged  for  ten  years  in  teaching,  and  who  have  received  the  educational 
diploma,  or  who  after  receiving  such  educational  diploma  have  held  for  one  year 
the  office  of  state,  city,  or  school  superintendent. 

1746.  Limitation  as  to  educational  diplomas. 

Sec.  1746.  State  educational  diplomas  must  be  issued  to  such  persons  only 
as  have  been  emj^loyed  in  teaching  for  five  years,  and  who  have  held  a  first- 
grade  state  certificate  for  at  least  a  year.  [Amendment,  approved  March  28, 
1874;  Amendments  l'Sl'&-4:,  100;  took  effect  from  passage. '''''' 

Yl^.  Applications  for  life  diplomas. 
Sec.  1747.  Apj^licants  for  life  diplomas  must  file  with  the  state  board  of  edu- 

(a)  The  repealed  sections  ■were  as  follows:  tion  of  twelve  montlily  copies  must  not  exceed  one  dol- 

Sec.  1720.  Some  jom-nal  published  in  this  state,  and  lar  and  fifty  cents;  and  the  state  board   cf  education 

devoted  exclusively  to  educational  purj^oses,  must  be  has  power  to  reduce  the  rate  whenever  the  journal  can 

designiited  by  the  state  board  of  education  as  the  "  State  be  creditably  sustained  at  a  lower  rate. 

Educational  Journal."  Sec.  1731.  At  the  beginning  of  each  school  year  the 

Sec.  1727.  The  superintendent  of  public  instruction  superintendent  of  iJublic  instraction  must  draw  his 

must  be  one  of  the  editors  of  the  journal.  order  in  favor  of  such  journal  on  the  state  controller 

Seo.  1728.  It  must  contain  a  department  devoted  to  for  an  amount  suflBcient  to  pay  for  such  subscriptions, 

the  publication  of  the  monthly  reports  of   the  state  which  order  must  be  certified  by  the  state  board  of 

normal  school ;  the  decisions  and  apportionments  made;  education  and  allowed  by  the  state  board  of  examiners, 

and  the  instructions  and  circulars  issued  by  the  state  whereupon  the  state  controller  must  draw  a  warrant 

board  of  education  or  the   superintendent  of  public  therefor  on  the  state  treasurer,  payable  out  of  any  un- 

instruction.  apportioned  school  moneys  in  the  treasury. 

Sec.  1729.  The  superintendent  of  public  instruction  (6)  The  original  section  did  not  have  the  words  "  Rec- 

must  annually  subscribe  for  a  sufficient  number  of  cop-  onimendations  for  "in  the  first  subdivision;  "state" 

ies  of  such  journal  to  supply  each  school  superintend-  in  the  third,  or  "  to  be  granted  only  to  females." 

ent,  city  superintendent,  clerk  of  the  district,  and  dis-  (c)   The  original  section  did  not  have  the  last  clause 

trict  school  library  with  one  copy  thereof.  commencing  with  the  words  "and  who  have." 

Sec.  1730.  The  price  paid  for  each  annual  subscrip- 

16  241 


17i7-i753  POLITICAL  CODE. 

cation  certificates  of  tbeir  success  iu  teaching;  and  tbe  board,  after  examina- 
tion, must  present  tbe  appHcation  to  tbe  state  board  of  education,  witb  its 
recommendation.  [Amendment,  approved  3Iarch  28,  1874;  Amendments  1873-4, 
101;  took  effect  from  passage}^'^ 

1748.  Examination  of  applicants  for  diplomas  and  certificates. 

Sec.  1748.  Every  appbcant  for  a  state  certificate  sball  be  examined  by  written 
and  oral  questions  in  algebra,  geography,  history  of  the  United  States,  consti- 
tution of  tbe  United  States  and  California,  physiology,  natural  philosophy, 
natural  bistoiy,  ortbogi-apby,  defining,  penmanship,  reading,  method  of  teach- 
iutr,  vocal  music,  drawing,  and  school  law  of  California.  [Amendment,  approved 
Ularch  -28,  1874;  Amendments  1873-4,  101;  took  effect  from  passage}"^ 

1749.  Standing  to  be  indorsed  on  certificates. 

Sec.  1740.  The  standing  in  each  study  must  be  indorsed  upon  the  educa- 
tional diploma  or  certificate,  or  otherwise  it  is  not  a  valid  certificate.  [Amend- 
ment, approved  March  28,  1874;  Amendments  1873-4,  101;  took  effect  from 
ptassage.'''^ 

1750.  Certificates  may  be  issued  without  examination,  ivhen. 

Sec.  1750.  Normal  school  diplomas,  from  any  state  normal  school  in  the 
United  States,  and  life  diplomas  by  the  state  board  of  examination  or  educa- 
tion, in  any  of  tlie  United  States,  must  be  recognized  by  this  state  as  primary 
evidence  of  fitness  for  teaching;  and  the  board  may,  on  application  of  the  hold- 
ers thereof,  issue,  without  examination,  state  certificates,  and  fix  the  grade 
thereof.  [Ameiidment,  approved  March  28,  1874;  Amendments  1873-4,  101;  took 
effect  from  passage.'-'^^ 

1751.  Slate  certificates  on  examinations  before  covnty  boards. 

Sec.  1751.  The  board  may  grant  state  certificates  to  those  who,  in  examination 
before  county  boards,  have  attained  the  standard  of  proficiency  prescribed  by 
the  state  board  of  education;  provided,  that  the  original  examination  papers  be 
forwarded  to  the  state  board  of  examination  within  fifteen  days  after  the  close 
of  the  examination.  [Amendment,  approved  March  28,  1874;  Amendments  1873-4, 
102;  took  effect  fi'om  jyassage.'-^'' 

1752.  Revocation  of  diplomas  or  certificates. 

Sec.  1752.  Tbe  board  may,  for  immoral  or  unprofessional  conduct,  profanity, 
intemjierance  or  evident  unfitness  for  teaching,  revoke  any  educational  diploma 
or  certificate  granted  by  it.  [Amendment,  approved  March  28,  1874;  Amendments 
1873-4,102;  took  effect  from  passage. '-^^ 

1753.  Beneical  of. 

Sec  1753.  The  board  may,  at  the  expiration  of  the  time  for  which  they  are 
granted,  renew  diplomas  or  certificates  for  a  like  period  for  which  they  were 
originally  granted.  [Amendment,  approved  January  20,  1876;  Amendments  1875-6, 
28;  look  effect  immediately. '^^^ 

(n)  The  original  section  had  the  following  additional  It  also  had  the  following  additional  sentence  after 

sentence:  "  grade  thereof:" 

•'  The  htate  lx)ard  of  oduiation  inny  recognize  the  life  "  When  any  applirant  presents  to  the  state  board  of 

diplr>iiiah  of  <itlir-r  Ktat<  Kof  tin-  I'nitcd  States,  and  issue  examination  certiticiites  or  other  evidence  of  a  public 

Ut  the  liolderti  thereof  life  dipIuniuK  of  this  btate."  nature  conclusive  of  liis  fitness  to  teach  all  the  branches 

(fc)  OriKln»l  section:  of  the  higher  grades,  tlie  board  may,  by  a  unanimous 

Sec.  Mix.  Ivvcrj'ai'I'l'^'""*^"'"  an  educational  diploma,  vote,  grant  to  such  applicant  a  first  grade  certificate." 

or  for  a  state  ii-rtllicate  of  tlie  first  or  second  grade,  (c)    The  original  S(Htion  had  the  w^ords  "  without  ex- 

inuHt  \>c  eiiimined  by  writt<n  "T  printc<l  and  oral  (jues-  aniination  "  after  tlie  words  "  the  board  may;"  but  it 

Uuns,  in   alg'-bn,  arithmetic,  grammnr,   (•om))osition,  did  not  have  the  proviso. 

geo;Tiii)hy,  history  of  the   fnlted  Ktates.  jiliysiology,  (/)   Tlie  original   section  did  not   have   the  words 

naturu!  |>hlloM)phy,  na'ura)  history, ortliograpiiy,  dehn-  "  profanity,  intemiierance,"  "  evident "  or  "  granted  by 

Jng,   ixniiinnshli),   rea'ling,   method  of  teaching,   and  It." 

vocal  music  and  drawing.  (.7)  The  original  section  was  the  same  as  the  amend- 

(<:)  The  original  section  liad  the  words  "  in  the  class  ment  in  the  text, 

and  "  after  thi-  word  "  standing."  Ii  was  previously  amended  by  act  of  March  28,  1874 

(d)  The  original  secth.n  did   not    have  the  words  (Amendments  187:i-4:,  102),  so  as  to  add  the  words  "  ex- 

"or  educatimi."  Bi-fore  the  words  "  tliis  state"  it  cept  of  the  third  grade  "  after  the  word  "  certificates." 
bad  the  Murds  "  the  state  board  of  examiuutiou  of." 

242 


EDUCATION.  1754-1770 

1754.  EligihUUy  to  teach  of  holders  of  diplomns. 

Sec.  1754.  The  holders  of  diplomas  are  eligible  to  teach  in  any  public  school, 
except  in  high  schools  in  which  languages  other  than  the  Englisli  are  required 
to  be  taught  by  such  teachers. 

1755.  Same  of  holders  of  certificates. 

Sec.  1755.  Holders  of  state  certificates  are  eligible  to  teach  as  follows: 

1.  Those  of  the  first  grade,  in  grammar  schools; 

2.  Those  of  the  second,  in  second  grade  schools,  and  as  assistants  in  gram- 
mar schools,  except  first  and  second  grades; 

3.  Those  of  the  third,  in  primary  schools. 

1756.  [Sec   175G,  **'  was  repealed  by  act  approved  March  13,  1874 ;  Amend- 
ments 1873-4,  84;  took  effect  from  passage.] 

1757.  Fees  from  persons  receiving  life  diplomas. 

Sec  1757.  Every  person  receiving  a  life  diploma  must  j^ay  to  the  board  three 
dollars,  to  defray  the  expense  of  issuing  such  diploma. 

1758.  Compensation  of  members  of  the  hoard. 

Sec  1758.  Each  of  the  appointed  members  of  the  board  shall  receive  an 
annual  salary  of  two  hundred  dollars,  payable  out  of  the  general  fund  on  the 
warrant  of  the  state  controller,  indorsed  by  the  superintendent  of  public  in- 
struction. 

ARTICLE  XVI. 

COUNTY    BOARDS    OF    EXAMINATION. 

1768.  Board,  how  composed. 

Sec  1768.  Each  county  board  of  examination  is  composed  of  the  county 
school  superintendent  of  such  county,  except  as  provided  in  section  seventeen 
hundred  and  sixty-nine,  and  not  less  than  three  teachers  who  follow  the  j^ro- 
fession  of  teachiug  at  the  time  thej^  are  chosen,  and  holding  a  certificate  of 
fitness  for  teaching,  not  less  than  a  first  grade  county  certificate,  appointed  by 
the  county  school  superintendent.  [Amendment,  approved  February  14,  1876; 
Amendments  1875-6,  28  ;  took  effect  from  passage.  '''* 

1769.  Chairman. 

Sec.  1769.  When  the  county  school  superintendent  is  the  holder  of  a  certifi- 
cate equal  to  a  first  grade  county  certificate,  in  full  force  and  effect,  he  shall  be 
the  chairman  of  the  county  board  of  examination;  and  in  case  the  county  super- 
intendent is  not  the  holder  of  a  certificate  equal  to  a  first  grade  county  certifi- 
cate, in  full  force  and  effect,  the  county  superintendent  of  the  county  shall 
designate  and  appoint  the  principal  of  the  school  having  the  greatest  number 
of  pupils  therein,  as  the  chairman  of  said  board  of  examination,  to  serve  as  such 
chairman  not  more  than  one  year  and  not  less  than  one  term  of  said  board,  in 
the  discretion  of  such  superintendent.  [Amendment,  approved  February  14, 
1876;  Amendments  1875-6,  28;  took  effect  from  passage.  '"' 

1770.  Meetings. 

Sec  1770.  The  county  board  must  meet  and  hold  examinations  as  follows: 
Commencing  on  the  first  Wednesday  in  the  months  of  December,  March,  June, 

(a)  Repealed  section:  posed  of  the  school  superintendent  of  such  county  and 

Sf:c.  1756.  Every  applicant  for  a  state  diploma  or  cer-  not  less  than  three  teachers  (holding  not  less  than  a 

tificate  must  pay  a  fee  of  two  dollars,  and  the  amount  first  grade  county  certificate,  if  there  are  so  many  in 

collected  must  be  applied  to  the  support  of  the  state  the  county)  appointed  by  him. 

educational  journal.  (c)   Original  section: 

(6)  Original  section:  Seo.  17(19.  The  school  superintendent  is  chairman  of 

Skc.  1708.  Each  county  board  of  examination  is  com-  the  board. 

243 


1770-1775  POLITICAL  CODE. 

and  September.  The  place  of  meeting  must  be  designated  by  tlie  cLairman. 
[Amendment,  apjyroved  Jlarch  28,  1874;  Amendments  1873-4,  102;  took  effect 
from  passage}"'' 

1T71.   Power  to  grant  certificates. 

Sec.  1771.  The  count  j  board  of  examination  has  power  to  grant  certificates 
of  three  gi-ades : 

1.  County  certificates,  first  grade,  valid  for  three  years,  and  authorizing  the 
holder  to  teach  a  gi-ammar  school,  or  a  school  of  the  first  grade  in  the  county. 

2.  County  certificates,  second  gTade,  valid  for  two  years,  and  authorizing  the 
holder  to  teach  a  second  grade  school  in  the  county. 

3.  County  certificates  of  the  third  grade,  valid  for  one  year,  and  authorizing 
the  holder  to  teach  a  third  grade  [school]  in  the  county. 

4.  Third  gi'ade  certificates  are  granted  only  to  females. 

5.  The  board  may  also  grant  to  the  holders  of  certificates  granted  by  the 
boards  of  examination  of  the  various  counties  of  this  state,  certificates  of  like 
grade  and  standing  as  those  held  by  such  apj^licants  without  examination. 
[Amendment,  approved  Aprill,  1876;  Amendments  1875-6,  29;  took  effect  sixtieth 
day  after  p)assage}^' 

1772.  Certiffcates,  to  whom  to  he  issued. 

Sec  1772.  Certificates  must  be  granted  only  to  those  who  have  passed  a 
satisfactory  examination  in  all  the  studies  required  for  a  state  certificate  of  cor- 
responding grade,  and  upon  the  questions  prepared  by  the  state  board  of  ex- 
amination, and  reached  the  percentage  i")rescribed  by  the  state  board  of  educa- 
tion; provided,  that  applicants  for  second  grade  county  certificates  shall  be 
required  to  pass  an  examination  only  in  arithmetic,  grammar,  geography,  com- 
position, history  of  the  United  States,  orthography,  defining,  penmanship, 
reading,  and  method  of  teaching;  and  provided  further,  that  applicants  for 
tliird  grade  county  certificates  shall  be  required  to  pass  an  examination  only  in 
arithmetic,  grammar,  geograjihy,  orthography,  defining,  reading,  and  method 
of  teaching.  [Amendment,  ajyproved  February  14,  1876;  Amendments  1875-6, 
28;  took  effect  from  passage.'"'' 

1773.  Examination!^,  hoiv  to  be  conducted. 

Sec  1773.  All  examinations  must  be  conducted  partly  in  writing  and  in  part 
orally.  [Amendment,  approved  March  28,  1874;  Amendments  1873-4,  103;  took 
effect  from  joassage.'-'^'' 

1774.  Standing  to  be  indorsed  on  certificate. 

Skc  1774.  The  standing  of  each  applicant  in  each  study  and  in  the  class 
must  be  indorsed  on  the  back  of  each  certificate,  otherwise  it  is  not  a  valid 
ff-rtificate. 

1775.  Jienewal  and  revocation  of  certificates. 

Sec.  1775.  The  board  may,  without  examination,  renew  second  grade  county 
certificates  ui)on  the  application  of  the  persons  who  have  held  them  for  two  years, 
and  also  third  grade  county  certificates  upon  the  application  of  the  persons  who 
have  lichl  llicm  f(.r  one  year,  to  remain  in  full  force  and  effect  so  long  as  such 

(a)  The  oriRlniil  Hcrtlon  had  llic  wonls  "  and  at  such  be  isBued  to  thoBe  only  who  have  passed  a  satisfactorj- 

other  tiiiXBBH  the  chainnan  may  din.  t "  after  the  word  exiiniinaticju  in  all  of  the  above  subjects  except  natural 

"September."  pliilosophv  and  algebra. 

(M  The  original  Bectlon  did  not  have  the  fifth  sub-  It  was  pr.  vioiisly  amended  by  act  of  Marcli  2«,  1874; 

division.  Aniendini-nts  lh7:i-4,  102,  so  as  to  read  as  follows: 

(r)   Original  BPctlon:  Sko.  1772.  Certificates  must  be  granted  to  tliose  only 

Hkc.  1772.  CertiflcistcB  of  the  first  grade  must  (except  who  have  piiswd  a  satisfactoi-j-  examination  in  all  the 

8B  In  this  arliili-  otherwltc  jirovldrd)   be  granted  to  studios  required  for  a' state  certificate  (jf  corresponding 

those- nlywlio  have  p.-isscd  a  t-allsfactory  examination  gr.-.de,  and  upon  the  quesflouR  prepared  by  the  state 

In  orthography,  defining,  readluK.  pi-nmansliip.  physl-'  boaid   of    examination,   and    reached   the  percentage 

ologv-.    natur;;]   jdiilosophy,  ( (.mposlfi.,n,    Hrithmttic.  priscrlbcd  by  the  state  board  of  education, 

algebra,  geogriiphy.  grammar,   historj-  <.f  the  Tnited  [J)  Tl.e  original  section  had  the  words  "  in  the  above- 

S'htiB,  natural  history,  industrinl    drawini;,  and  the  named  studies  "  after  "  examinations." 
method  of  teaching.     C't-rtiCcatea  of  second  grade  must 

244 


EDUCATION.  1775-1791 

persons  follow  tlie  occupation  of  teachers,  pro"\dded  that  the  hoard  may  revoke 
any  county  certificate  for  immoral  or  unprofessional  conduct,  profanity,  intem- 
perance, or  evident  unfitness  for  teaching.  [Amendment,  approved  February 
14,  1876;  Amendments  1875-G,  28;  took  (^feci/rom  passage}^'' 

I  Sec.  1776'"'  was  repealed  by  act  approved  March  28,  1874;  Amendments 
1873—4,  111;  took  effect  from  passage.] 

1777.  Compensation  of  hoard. 

Sec.  1777.  Members  must  receive  for  their  sendees  a  sum  not  exceedino- 
three  dollars  j^er  day,  in  addition  to  actual  traveling  expenses,  for  each  quar- 
terly session  of  the  board,  payable  out  of  the  unapportioned  county  school  fund, 
on  the  wan-ant  of  the  county  superintendent.  [Amendment,  approved  Mardi. 
28,  1874;  Amendments  1873-4,  111;  took  effect  from  passage}"^ 

AKTICLE  XVII. 

CITY    BOARDS    OF    EXA^IINATION. 

1787.  Mast  he  a  hoard  in  each  city. 

Sec.  1787.  In  every  city  or  city  and  county  having  a  board  of  education  there 
must  be  a  board  of  examination. 

1788.  Hoio  constituted. 

Sec.  1788.  Each  board  of  examination  consists  of  the  city  and  county  super- 
intendents of  schools  and  of  four  teachers  resident  of  such  city  and  holders  of 
state  diplomas,  elected  by  the  board  of  education  and  holding  office  for  two 
years. 

1789.  Chairman. 

Sec.  1789.  The  school  supeiintendent  of  the  city  is  chairman  of  the  city 
board  of  examination. 

1790.  Meetings, 

Sec.  1790.  The  board  must  meet  and  hold  examinations  as  follows:  Com- 
mencing on  the  first  Wednesday  in  the  months  of  December,  March,  June, 
and  September.  The  place  of  meeting  must  be  designated  by  the  chairman. 
[Amendment,  approved  March  28,  1874;  Amendments  1873-4,  103;  took  effect  from 
passage.'-^'' 

1791.  General  powers. 

Sec  1791.  The  board  has  power  to  grant: 

1.  Certificates  of  the  same  grade  and  for  the  same  time  as  the  state  board  of 
examination  has  power  to  grant; 

2.  High  school  certificates,  valid  for  six  years; 

3.  S^DCcial  certificates  of  the  first  grade,  vaUd  for  four  years,  upon  such 
special  studies  as  may  be  authorized  by  the  state  board  of  education  or  board 
of  education  in  any  city,  or  city  and  county; 

4.  High  school  and  special  certificates  must  be  granted  upon  such  examina- 
tions as  may  be  authorized  by  the  state  board  of  education,  or  board  of  educa- 
tion of  any  city,  or  city  and  county.     All  other  certificates  must  be  granted 

(a)    The  original    section  was    like  the  following  to  a  graduate  of  any  normal  school,  a  first  or  second 

amendment  except  that   it  did  not  have  the   words  grade  county  certificate. 

"profanity,   intemj^erance   or  evident,"  and   had   the  (c)   The  original  section  had  the  following  additional 

words  "  the  profession  of  "  before  "  teaching."  sentence: 

It  was  previously  amended  by  act  of  JIarch  28, 1874;  "  When  a  board  holds  sessions  atother  timesno  corn- 
Amendments  1875-6,  29,  so  as  to  read  as  follows:  pensatiou  is  allowed  from  the  county;  but  the  board 

Sec.  If75.  The  board  may,  without  examination,  re-  may  ch.-irge  an  examination  fee  not  exceeding  two  dol- 

new  certificates,  and  may  revoke  any  county  certificate  lars  for  each  applicant." 

for  immoral  or  unprofessional  conduct,  profanity,  in-  {d)  Original  section: 

temperance,  or  evident  unfitness  for  teaching.  Sec.  1790.  The  board  must  meet  at  such  times  and 

(!>)  Repealed  section:  places  as  the  chairman  may  direct. 

Sec.  177G.  The  board  may  without  examination  grant 

245 


1791-1S18  POLITICAL  CODE. 

ujioii  examinations  in  all  the  studies  required  for  a  state  certificate  of  corre- 
sponding grade,  and  upon  questions  prepared  by  the  state  board  of  examination, 
and  upon  the  percentage  prescribed  by  the  state  board  of  education.  [Amend- 
ment, approved  March  28, 1874;  Ameiidments  181 3-4:,  104:;  took  ejj'eci  from  passage}"'' 

1792.    ]l7<t>»  crrlificates  may  be  granted  or  revoked. 

Sec.  1792.  The  board  may  without  examination  grant  certificates  of  like  grade 
to  holdei-s  of  certificates  granted  in  other  cities,  and  renew  all  certificates 
granted  by  it,  and  revoke  any  certificate  for  immoral  or  unprofessional  conduct, 
profanity,  intemperance,  or  evident  unfitness  for  teaching.  [Amendynent ,  ap- 
pro red  January  20,  1876;  Amendments  1875-0,  30;  took  e^'ect  immediately}^' 

1T93.  Eligibility  to  teach  of  holders  of  city  certificates. 

Sec.  1793.  The  holders  of  city  certificates  are  eligible  to  teach  in  the  cities  in 
which  such  certificates  were  granted,  in  schools  of  grades  corresijondiug  to  the 
grade  of  such  certificates. 

1794.   Compensation  allowed. 

Sec.  1794.  The  teachers,  members  of  the  board,  may  receive  such  compen- 
sation as  may  be  allowed  by  the  board  of  education,  payable  out  of  the  city 
school  fund. 

AKTICLE  XVIII. 

COUNTY    SCHOOL    TAX, 

1817.  County  superintendent  to  furnish  supervisois  and  auditor  annually  statement 

of  amount  of  funds  required. 
Sec  1817.  The  county  superintendent  in  each  county,  except  in  the  city 
and  county  of  San  Francisco,  must,  on  or  before  the  first  regular  meeting  of 
the  board  of  supervisors,  in  September  in  each  year,  furnish  the  board  of 
supervisors  and  the  auditor,  respectively,  an  estimate  in  writing  of  the  minimum 
amount  of  county  school  funds  needed  for  the  ensuing  year.  This  amount  he 
must  compute  as  follows: 

1.  He  must  ascertain,  in  the  manner  provided  for  in  subdivisions  one  and 
two  of  section  one  thousand  eight  hundred  and  fifty-eight,  the  total  number  of 
teachers  for  the  county; 

2.  He  must  calculate  the  amount  required  to  be  raised,  at  five  hundred  dollars 
per  teacher;  from  this  amount  he  must  deduct  the  total  amount  of  state  appor- 
tionments, less  ten  per  cent.,  received  by  the  county  for  the  next  preceding 
school  year,  and  the  remainder  shall  be  the  minimum  amount  of  countj'  school 
fund  needed  for  the  ensuing  year;  provided,  that  if  this  amount  is  less  than 
Hufiicient  to  raise  a  sum  equal  to  three  dollars  for  each  census  child  in  the 
county,  then  the  minimum  amount  shall  be  such  a  sum  as  will  be  eqiial  to  three 
dollars  for  each  census  child  in  the  county.  [Neiv  section,  approved  March  28, 
1874;  Amendments  181Z-4,  105;  took  effect  from  passage. 

1818.  L>'vy  if  county  tax. 

Sec.  1818.  The  board  of  sui)ervisors,  except  of  the  city  and  county  of  San 
Francisco,  of  each  county,  must,  annually,  at  the  time  of  levying  other  county 
taxes,  levy  a  tax  to  be  known  as  the  county  school  tax,  the  maximum  rate  of 
which  must  not  exceed  fifty  cents  on  each  one  hundred  dollars  of  taxable 
property  in  the  county,  nor  the  minimum  rate  be  less  than  sufficient  to  raise  the 
minimum  amount  reported  by  the  county  superintendent,  in  accordance  with 

(n)  Tlif  orlKirial  wctlonrlld  not  have  flthcr  the  third  It  WfiB  previouKly  amended  by  act  of  Marcli  28,  1874; 

or  fourth  fiiibdivihion.  AiiieiidiiientB  1873-4,  104,  so  bb  to  read  like  the  ainend- 

{h)  The  oriKlnal  wetloii  did  not  have  the  lai<t  elauBe  nieut  In  the  text,  excejit  that  it  also  had  the  words 

coinmenciDg  with  the  wurdii  '•  and  revoke  any  certifi-  "  ex<'ept  of  the  third  grade  "  after  the  worda  "  all  cer- 

cate."  tificateB." 

246 


.  EDUCATION.  1818-183G 

the  provisions  of  the  precedinf^  section.     The  supervisors  must  determine  the 
minimum  rate  of  the  county  school  tax  as  follows: 

1.  They  must  deduct  fifteen  per  cent,  from  the  equalized  value  of  the  last 
general  assessment  roll,  and  the  amount  required  to  be  raised,  divided  Ly  the 
remainder  of  the  assessment  roll,  is  the  rate  to  be  levied;  but  if  any  fraction  of 
a  cent  occurs,  it  must  be  taken  as  a  full  cent  on  each  hundred  dollars,  [Amend- 
vient,  approved  March  28,  1874 ;  Amendments  1873-4,  105 ;  took  effect  from 
passage. '-''^ 

1819.  Duty  of  auditor  if  supervisors  fail  to  make  levy. 

Sec.  1819.  If  the  supervisors  fail  to  levy  the  tax  as  herein  provided,  then  the 
auditor  must,  and  add  it  to  the  assessment-roll. 

1820.  Proceeds  of  tax  to  he  paid  into  the  county  school  fund. 

Sec.  1820.  All  moneys  derived  from  this  tax  in  each  county  must  be  paid  into 
the  treasury  thereof  to  the  credit  of  the  school  fund. 

AETICLE  XIX. 

DISTRICT    SCHOOL    TAX. 

1830.  Elections  to  determine. 

Sec  1830.  The  board  of  trustees  of  any  district  may,  when  in  their  judgment 
it  is  advisable,  call  an  election  and  submit  to  the  electors  of  the  district  the 
question  whether  a  tax  shall  be  raised  to  furnish  additional  school  facilities  for 
the  district,  or  to  maintain  any  school  in  such  district,  or  for  building  one  or 
more  schoolhouses,  or  for  any  two  or  all  of  these  purposes. 

1831.  Notice  of  election. 

Sec.  1831.  Such  election  must  be  called  by  posting  notices  in  three  of  the 
most  i^ublic  places  in  the  district,  for  twenty  days;  and,  also,  if  there  is  a  news- 
paper in  the  county,  by  advertisement  therein  once  a  week  for  three  weeks. 

1832.  What  notice  to  contain. 

Sec  1832.  Such  notices  must  specify  the  time  and  place  of  holding  the  elec- 
tion, the  amount  of  money  proposed  to  be  raised,  and  the  purjDOse  for  which  it 
is  intended  to  be  used. 

1833.  Judges  of,  hoiv  appointed. 

Sec  1833.  The  trustees  must  appoint  three  judges  to  conduct  the  election, 
and  it  must  be  held  in  all  respects,  as  nearly  as  pi'acticable,  in  conformity  wdth 
the  general  election  law. 

1834.  Ballots,  what  to  contain. 

Sec  1834.  At  such  elections  the  ballots  must  contain  the  words:  "Tax — 
Yes,"  or  "Tax — No,"  and  also  the  name  of  one  person  as  assessor  and  one  as 
collector,  and  the  same  person  may  be  elected  to  both  offices.'"' 

1835.  Returns. 

Sec.  1835.  If  a  majority  of  the  votes  cast  are  "  Tax — Yes,"  the  officers  of  the 
election  must  certify  the  fact  to  the  trustees,  and  also  certify  the  names  of  the 
persons  having  the  plurality  of  votes  for  assessor  and  collector. 

1836.  Certificates  of  election. 

Sec  1836.  The  trustees  must  issue  certificates  of  election. 

(n)  The  original  eection  had  the -worcls  "  thirty-five  titled  to  Bchool  apportionment,  as  sho-nm  by  the  next 

cents"  instead  of  "fifty  cents,"  and  after  the  words  preceding  school  census,  and  then  calculate  the  amount 

"  less  than  sufiicient  to  raise,"  it  proceeded  as  follows:  required  to  be  raised,  at  three  dollars  per  child." 

"  A  sum  equal  to  three  dollars  for  each  child  in  the  It  had  a  second  subdivision  similar  to  the  first  in  the 

county  between  five  and  fifteen  years  of  age.     The  amendment  above  inserted. 

Buper\-i6orB  must  determine  the  minimum  rate  of  the  (h)  An  act  of  March  18,1874;  1873-4,446,  provided 

county  school  tax  as  follows:  for  the  election  of  a  district  assessor  and  district  col- 

"  1.  They  must  ascertain  the  number  of  children  en-  lector  for  Ukiah  school  district,  Mendocino  County. 

247 


1837-1842  POLITICAL  CODE. 

1837.  Ihilies  of  assessor. 

!Si.c.  1837.  The  assessor  ou  receiving  bis  certificate  of  election  must  forth- 
with assess  in  the  manner  provided  for  county  assessors,  all  the  taxable  persons 
and  property  in  the  district,  and  witliiu  thirty  days  return  his  roll,  footed  up, 
to  tlie  trustees. 

1838.  Ta,v,  how  levied. 

Six.  1838.  The  trustees,  upon  receiving  the  roll,  must  deduct  fifteen  per 
cent,  therefrom  for  anticipated  delinquencies,  and  then  by  dividing  the  sum 
voted,  together  Avith  the  estimated  cost  of  assessing  and  collecting  added 
thereto,  by  the  remainder  of  the  roll,  ascertain  the  rate  per  cent,  required,  and 
the  rate  so  ascertained  (using  the  full  cent  on  each  hundred  dollars  in  place  of 
any  fraction)  is  hereby  levied  and  assessed  to,  on  or  against  the  persons  or 
property  named  or  described  in  the  roll,  and  is  a  lien  on  all  such  property  until 
the  tax  is  paid;  and  the  tax,  if  not  paid  within  the  time  limited  by  the  next 
succeeding  section  for  its  payment,  shall  be  delinquent,  and  must  be  collected 
in  the  manner  prescribed  in  sections  eighteen  hundred  and  forty-five,  eighteen 
hundred  and  forty-six,  eighteen  hundred  and  forty-seven,  eighteen  hundi-ed 
and  forty-eight,  eighteen  hundred  and  forty-nine,  eighteen  hundred  and  fifty, 
eighteen  hundred  and  fifty-one,  and  eighteen  hundred  and  fifty-two  of  this 
code.  [Amendment,  approved  3Iarch  28,  1874;  Amendments  1873-4,  lOG;  took 
effect  from  passage.'-"^ 

1839.  Maximum  rate  of. 

Sec.  1839.  The  maximum  rate  of  tax  levied  by  a  district  tax  in  any  one  year 
for  building  purposes  must  not  exceed  seventy  cents  on  each  hundred  dollars, 
and  the  maximum  rate  levied  for  other  school  purposes  must  not  exceed  thirty 
cents  on  each  hundred  dollars  in  any  one  year. 

1840.  3ju(dization  of. 

Stc.  1840.  The  trustees  upon  receiving  the  assessment  roll  from  the  assessor 
must  give  five  days'  notice  thereof  by  posting  a  notice  in  three  public  places 
in  the  district,  and  sit  for  at  least  three  days  as  a  board  of  equalization  at  such 
time  and  place  as  has  been  named  in  such  posted  notices,  and  they  have  the 
same  power  as  county  boards  of  equalization  to  make  any  changes  in  the  assess- 
ment-roll. 

1841.  Collection  of 

Sfx.  1841.  As  soon  as  the  rate  of  taxation  has  been  determined,  as  provided 
in  the  pi-eceding  section,  the  trustees  must  place  the  tax  list  in  the  hands  of  the 
collector,  who  must  then  proceed  to  collect  the  tax,  and  within  sixty  days  return 
the  roll  to  the  trustees,  with  the  word  "paid"  marked  opposite  the  name  of 
each  person  or  description  of  projDei-ty  from  whom  or  on  which  he  has  received 
the  tax;  and  he  must  also  at  the  same  time  file  with  the  trustees  the  county 
treasurer's  receipt  for  all  the  moneys  by  him  collected;  and  the  persons  and 
property  on  the  roll  not  by  the  collector  marked  "paid"  are  delinquent. 

1842.  Varaiicy  in  office  of  assessor  or  collector. 

Skc.  1842.  In  case  any  assessor  or  collector  of  district  taxes  refuses  or  neg- 
lects to  qualify,  within  ten  days  after  his  election  or  appointment,  or  having 
qualified,  refuses  or  negh-cts  to  act,  or  in  case  of  any  vacancy  from  aity  other 
cause  in  either  or  both  of  said  offices,  the  board  of  trustees  must  call  a  special 
election,  giving  at  least  five  days'  notice  to  fill  such  vacancy.  [Amendment,  ap- 
proved March  28,  1874;  Amendments  1873-4,  112;  took  effect  from  passage.'-^^ 

(a)  The  original   Bcction  did   not  have  the  words  nieniing  with  " board  of  trustees  must  caU  a  special 

"  hLhII  lie  d<lin<i"'iit  and."     IiiKt<-ad  <if  tlic  hint  clauHU  elt-ctlon,"  etc.,  had  the  words  "  board  of  trustees  must 

conjiu<noin«  with  the  wirds  "  and  must  be  <(dlected  appoint  some  proper  person  to  fin  the  place." 
in  the  tnann<r"it  had  tlie  wordn  "and  must  be  col-         It  was  amended  by  act  approved   March   1.3,1874; 

lect«-d   in   tin-  same  manner  as  delinijucnt  state  and  Amen<lnientH  187:}-4,  82,  so  as  to  read  like  the  amend- 

county  taxes."  ment  in  the  text,  except  that  it  recjuirod  "  at  least  tea 

(6)  The  original  section  iniitead  of  the  words  com-  days'  notice  "  instead  of  "  at  least  live  days'  notice." 

248 


EDUCATION.  1843-1849 

1843.  Compenmtio7i  of  assessoi'  and  collector. 

Sec.  1843.  The  compensation  of  the  assessor  and  collector  must  be  fixed  by 
the  board  of  trustees,  and  paid  out  of  the  money  collected. 

1844.  Bond  of  collector. 

Sec.  1844.  The  collector  must  execute  an  official  bond  in  an  amount  to  be 
fixed  by  the  board  of  tiiistees. 

[Secs.  1845,  1846,  1847,  and  1848,  as  originally  passed,'"^  were  repealed  by 
act  approved  March  13,  1874;  Amendments  1873-4,  84;  took  efi^ect  from  pas- 
sage; and  afterward  the  following  new  sections  were  substituted  in  their  place:] 

1845.  Delinquent  tax  list. 

Sec.  1845.  When  any  school  tax  shall  have  become  delinquent,  the  delin- 
quent tax  list,  duly  certified  by  the  district  tax  collector  of  the  school  district  in 
which  the  school  tax  has  become  delinquent,  shall  be  delivered  to  the  district 
attorney  of  the  county  in  which  the  district  is  situated.  [New  (substituted)  section, 
approved  March  28,  1874;  Amendments  1873-4,  106;  took  effect  from  passage. 

1846.  Recovery  of  delinquent  tax. 

Sec  1846.  It  shall  be  the  duty  of  the  district  attorney  of  the  county  to  com- 
mence a  civil  action,  in  the  name  of  the  People  of  the  State  of  California,  in 
any  court  of  the  county,  to  recover  the  delinquent  taxes.  [New  (substituted)  sec- 
tion, approved  March  28, 1874;  Amendments  1873-4, 107;  took  effect  from  passage. 

1847.  Form  of  complaint. 

Sec.  1847.  In  such  action  a  complaint  substantially  in  the  following  form 
shall  be  sufficient: 

[Title  of  Court.] 

The  People  of  the  State  of  California 
vs. 
(Naming  the  defendant.) 
Plaintiff  avers  that  the  defendant  is  indebted  to  the  plaintiff  in  the  sum  of 

$ ,  district  school  tax  for school  district,  in  the  county  of  , 

State  of  California,  for  the  year  18—,  and  $ costs  of  collection  to  date. 

Plaintiff  demands  judgment  in  the  sum  of  $ .     [New  (substituted)  section, 

approved  March  28,  1874;  Amendments  1873-4,  107;  took  effect  from  passage. 

1848.  Judgment,  counsel  fees. 

Sec.  1848.  If  in  such  action  the  amount  is  paid,  or  the  plaintiff  recover  judg- 
ment, there  shall  be  included  in  such  judgment  the  sum  of  ten  dollars  as 
attorney's  fees.  [New  (substituted)  section,  approved  March  28,  1874;  Amend- 
ments 1873-4,  107;  took  eff'ect  from  passage. 

1849.  Summons  in  action  to  enforce  liens  on  real  estate. 

Sec  1849.  In  any  action  to  enforce  the  collection  of  said  tax,  wherein  any 
j)art  of  the  tax  is  charged  in  the  complaint  to  have  been  levied  or  assessed 

(a)  Repealed  sectione:  the  year;  and  Bucli  tax  must  be  equalized  and  coUected 

Sec.  1845.  The  school  superintendent  In  each  county  in  the  manner  provided  for  equalizing  and  collecting 

must,  on  or  before  the  first  day  of  March  in  each  year,  state  and  county  taxes.     The  collector  must  pay  over 

furnish  to  the  board  of  supervisors  and  tax  collector,  the  money  so  collected  to  the  county  treasurer,  who 

respectively,  an  estimate   in  writing  of  the   cost  of  must  place  it  to  the  credit  of  the  i-espective  districts 

maintaining  a  school  for  eight  months  in  each  school  from  which  it  is  collected,  as  a  special  deposit,  and 

district  in  the  county,  together  with  the  cost  of  inci-  pay  it  out  on  the  warrant  of  the  school  superintendent, 

dental  expenses  and  necessary  repairs:  and  also  an  es-  in  the  manner  provided  for  the  i)ajTnent  of  state  and 

timate  of  the  amount  of  public  money,  both  state  and  county  school  moneys. 

county,  to  which  each  district  will  be  entitled  during  Sec.  1847.  If  the  supervisors  fail  to  levy  the  tax  as 

the  year,  and  the  amount  necessary  to  be  raised  in  each  herein  i^rovided,  then  the  auditor  must,  and  add  it  to 

school  district  to  support  a  school  eight  months.  the  assessment-roll. 

Sec.  1846.  The  board  of  supervisors  in  each  county  Sec.  1848.  Any  school  district  whose  taxable  property 

must,   after  receiving   the   assessment-roll   from   the  does  not  exceed   seventy-five    thousand   dollars,   and 

county  assessor,  and  must,  at  the  time  of  levying  other  which  does  not  contain  more  than  twenty-five  chil- 

taxes  in  each  year,  levy  a  special  school  tax  upon  the  dren  between  the  ages  of  five  and  fifteen  years,  must, 

property  in  each  school  district  in  which  there  is  a  de-  on  a  proper  showing  of  the  facts,  be  exempted  from 

ficiency,  for  an  amount  which,  together  with  the  state  the  special  taxation  provided  for  in  the  two  preceding 

and  county  money  to  be  received,  is  suiilcient  to  main-  sections, 
tain  the  school  (or  schools)  for  eight  mouths  during 

249 


1849-1852  POLITICAL  CODE. 

against,  or  to  be  a  lieu  iipou  auy  real  estate  or  improvements  on  real  estate,  it 
shall  be  competent  to  proceed  in  rem  against  such  real  estate  or  improvements, 
or  against  both,  such  real  estate  being  described  in  the  summons  in  such  man- 
ner as  to  designate  the  particular  tract  or  tracts  of  land  sought  to  be  charged, 
and  in  case  of  improvements,  designating  the  tract  of  land  on  which  the  im- 
provements are  situated;  and  the  description  shall  be  sufficient,  if  it  can  be  as- 
certained what  land  is  intended,  the  summons  also  stating  the  amount  of  taxes 
claimed  as  a  lien,  and  the  year  in  Avhich  the  taxes  were  assessed.  Such  sum- 
mons need  not  name  any  i)articular  defendant,  but  may  be  directed  to  all 
owners,  known  and  unknown,  of  the  property  described;  and  such  action  may, 
at  the  option  of  the  district  attorney,  also  proceed  against  any  or  all  persons  or 
corporations  who  are  under  obligations  to  pay  the  tax.  [New  section,  approved 
March  28,  1874;  Amendments  1873-4,  108;  took  effect  fi^om  passage. 

1850.  Service  of  summons  by  publication. 

Sec.  1850.  Ser^vice  of  summons,  whether  issued  by  the  district  court  or  a 
justice's  coiu't,  may  be  made  by  j^ublication  of  a  copy  of  the  summons  once  a 
week  for  four  successive  weeks,  in  a  newspaper  published  in  the  county  in  which 
the  action  is  commenced.  The  service  of  the  summons  shall  be  complete  at  the 
expiration  of  the  time  of  such  publication.  [New  section,  approved  March  28, 
1874;  Amendments  l^T^-A,  108;  took  effect  from  passage. 

1851.  Judgment  lien. 

Sec.  1851.  Judgments  rendered  in  such  cases  in  the  district  court  shall  be 
docketed  and  become  liens  upon  all  property  of  the  defendant  liable  to  taxation, 
and  may  be  enforced  against  the  same;  and  the  district  attorney  may  file  tran- 
scripts of  judgments  rendered  in  justices'  courts,  under  this  article,  with  the 
county  clerk,  who  shall,  thereuj^on,  docket  such  judgments,  and  they  shall  be- 
come liens  from  and  after  such  docket  entry,  in  like  manner  as  judgments  ren- 
dered in  the  district  court  under  this  article,  and  the  county  clerk  may  issue 
execution  on  such  docketed  justice's  judgment  as  on  judgments  rendered  in  the 
district  court.  [New  section,  approved  March  28,  1874;  Amendments  1873-4,  109; 
took  effect  from  passage. 

1852.  Proceedings  in  action,  what  laio  to  govern. 

Sec.  1852.  The  law  regulating  proceedings  in  civil  cases  in  the  courts  of 
justice  in  this  state,  so  far  as  the  same  is  not  inconsistent  with  the  provisions  of 
this  article,  is  hereby  made  applicable  to  proceedings  under  this  article;  and 
any  deed  derived  from  a  sale  of  real  property  under  this  act,  shall  be  conclusive 
evidence  of  title,  except  as  against  actual  frauds  or  prepayment  of  taxes,  and 
shall  entitle  the  holder  thereof  to  a  writ  of  assistance  from  the  district  court  to 
obtain  possession  of  such  property;  provided,  that  the  sheriff,  in  selling  said 
property,  shall  only  sell  the  smallest  quantity  that  any  purchaser  will  take,  and 
pay  tlje  judgment  and  costs;  and,  provided  further,  that  when  property  is  sold 
belonging  to  minors  or  persons  under  legal  disability,  they  shall  have  until  one 
year  after  said  disability  is  removed,  to  redeem  said  property,  by  paying  the 
whole  bid  and  all  subsequent  taxes  and  interest.  All  moneys  collected  in  this 
behalf,  except  co.sts  and  charges,  shall,  without  delay,  be  paid  to  the  treasurer 
of  the  county,  for  the  use  of  the  district  in  which  the  tax  was  levied;  and  the 
date  thereof  shall  be  entered  opposite  the  proper  name  or  property  in  the  delin- 
quent list,  which  shall  be  open  to  public  inspection.  [New  section,  approved 
March  28,  1874;  Am<mdmeats  1873-4,  109;  took  effect  from  passage. 


250 


EDUCATION.  1857-1859 

AETICLE  XX. 

GENERAL    PROVISIONS    RELATIVE    TO    SCHOOL    FUNDS    AND    TAXES. 

1857.  No  compensation  allowed  to  certain  officer  for  collecting,  etc.,  school  moneys. 
Sec.  1857.  No  tax  collector  or  county  treasui-er  must  charge  or  receive  any 

fees  or  comj)ensation  whatever  for  collecting,  receiving,  keej^ing,  or  disbursing 
any  school  moneys;  but  the  whole  moneys  collected  must  be  paid  to  the  county 
treasurer. 

1858.  Apportionment  of  state  arid  county  school  fund,  hoxo  made. 

Sec.  1858.  All  state  school  moneys  apportioned  by  the  superintendent  of 
public  instruction,  must  be  apportioned  to  the  several  counties  in  proportion  to 
the  number  of  school  census  children  between  five  and  seventeen  yearg  of  age, 
as  shown  by  the  returns  of  the  school  census  marshal  of  the  preceding  school 
year;  provided,  that  Indian  children,  who  are  not  living  under  the  guardian- 
ship of  white  persons,  and  Mongolian  children,  shall  not  be  included  in  the 
apportionment  list.  The  school  superintendent  of  each  county  must  apportion 
all  state  and  county  school  moneys  as  follows: 

1.  He  must  ascertain  the  number  of  teachers  each  district  is  entitled  to,  by  cal- 
culating one  teacher  for  every  one  hundred  census  children,  or  fraction  thereof 
of  not  less  than  fifteen  census  children,  as  shown  by  the  next  preceding  school 
census; 

2.  He  must  ascertain  the  total  number  of  teachers  for  the  county,  by  adding 
together  the  number  of  teachers  assigned  to  the  several  districts; 

3.  Five  hundred  dollars  shall  be  apportioned  to  each  district  for  every  teacher 
assigned  it;  provided,  that  to  districts  having  ten  and  less  than  fifteen  census 
children,  shall  be  apportioned  three  hundred  dollars; 

4.  All  school  moneys  remaining  on  hand,  after  ajDportioning  five  hundred 
dollars  to  each  district  having  fifteen  census  children  or  more,  for  every  teacher 
assigned  it,  and  after  apportioning  three  hundred  dollars  to  districts  having 
less  than  fifteen  census  children,  must  be  apportioned  to  the  several  districts 
having  not  less  than  fifty  census  children,  in  proportion  to  the  number  of  census 
children  in  each  district.  [Amendment,  approved  3Iarch  28,  1874;  Amendments 
1873-4,  114;  took  effect  from  passage}^'' 

[As  to  apportionment  of  school  moneys  in  certain  counties,  see  ante,  1543.] 

1859.  Apportionment  of  state  and  county  school  fund,  hoto  made. 

Sec  1859.  On  or  after  the  first  day  of  July,  eighteen  hundred  and  seventy- 
five,  no  school  district  is  entitled  to  receive  any  apportionment  of  state  or 
county  school  moneys,  which  has  not  maintained  a  public  school  for  at  least 
six  months  during  the  then  next  preceding  school  year;  but  any  new  district 
formed  by  the  division  of  an  old  one,  is  entitled  to  its  apportionment  when  the 
time  that  school,  maintained  in  the  old  district  before  division,  and  in  the  new 
district  after  division,  is  equal  to  at  least  eight  months.  Any  school  district 
which  neglects  or  refuses  to  adoj)t  and  use  the  state  series  of  text  books,  and 
state  course  of  studies  required  by  law,  is  not  a  school  district  within  the  mean- 
ing of  this  article.  [Amendment,  approved  3Iarch  28,  1874;  Amendments  1873-4, 
110;  took  effect  from  passage.'-^'' 

(a)  Original  section:  It  was  amended  by  act  of  March  13,1874;  Amend- 

Sec.  1858.  All  state   school  moneys  apportioned  by  ments  1873-4,  83,  so  as  to  read  like  the  amendment  in 

the    superintendent    of    public  instruction,   and    all  the  text,  except  that  it  did  not  have  the  proviso  in  the 

county  school  moneys  api^ortioned  by  school  superin-  third  subdivision,   nor   the   following  words  in  the 

tendents,  must  be  apportioned  to   the  several  school  fourth,  "having  fifteen  census  children  or  more,"  or 

districts  and  cities  in  proportion  to  the  number  of  "  and  after  apportioning  tliree  hundred  dollars  to  dis- 

school  children  between  five  and  fifteen  years  of  age,  tricts  having  less  than  fifteen  census  children." 

as  shown  by  the  returns  of  the  school  census  marshals  (6)  1  he  original  section  did  not  have  the  words,  "  On 

for  the  next  preceding  school  year;  but  Indiim  chil-  or  after  the  first  day  of  July,  187.5"  nor  "and  state 

dren  who  are  living  not  under  the  guardianship  of  course  of  studies."    It  had  the  words  "  three  months " 

white  persons,  and  Mongolian  children,  must  not  be  instead  of  "six  months"  and  "eight  months." 
included  in  the  apportionment. 

251 


1860-1872  POLITICAL  CODE. 

1860.  Same. 

Sec,  18G0.  No  school  district  is  entitled  to  receive  any  apportionnient  of 
state  or  county  school  moneys  unless  the  teachers  employed  in  the  schools  of 
such  district  hold  legal  certificates  of  fitness  for  teaching,  in  full  force  and 
eflect. 

1861.  Wliai  sfaie  school  fund  may  he  used  for. 

Shc.  18G1,  The  state  school  fund,  excepting  as  otherwise  provided  in  this 
chapter,  must  be  used  for  no  other  purpose  than  the  payment  of  teachers. 


ARTICLE  XXI. 

MISCELLAXEOrS    PROVISIONS    RELATING    TO    PUBLIC    SCHOOLS. 

1867.  Insulting  or  abusing  teacher,  when  a  misdemeanor. 

Sec  18G7.  Any  parent,  guardian,  or  other  person,  who  shall  insult  or  abuse 
any  teacher  in  the  presence  of  the  school,  shall  be  guilty  of  a  misdemeanor, 
aud  be  liable  to  a  fine  of  not  less  than  ten  nor  exceeding  one  hundred  dollars. 
[l^ew  section,  apj)roved  21arch  28,  1874;  Amendments  1873-4,  110;  took  effect 
from  passage. 

1868.  Disturbing  public  school,  a  misdemeanor. 

Sec.  1868.  Anj'  person  who  shall  willfully  disturb  any  public  school,  or  any 
public  school  meeting,  shall  be  guilty  of  a  misdemeanor,  and  liable  to  a  fine  of 
not  less  than  ten  nor  more  than  one  hundred  dollars.  [New  section,  approved 
MarcJt  2S,  1874;  Amendments  lSl'd-4:,  110;  took  effect  from  passage. 

1869.  Issuance  of  certificate  or  diploma  otherivise  than  as  provided,  a  misdemeanor . 
Sec.  1869.  Any  state,  county  or  city,  or  city  and  county  superintendent,  or 

any  state,  county,  or  city  and  county  board  of  examinations,  who  shall  issue  a 
certificate  or  dij^loma,  except  as  provided  for  in  this  title,  shall  be  guilty  of 
misdemeanor.  [New  section,  approved  March  28, 1874;  Amendments  1873-4,  110; 
took  eff'ect  from  passage. 

1870.  School  officers  and  teachers  prohibited  from  acting  as  agent,  etc. 

Sec.  1870.  No  officer  named  in  this  title,  or  teacher  in  auy  public  school  held 
under  the  provisions  of  this  title,  must  act  as  agent  for  any  author,  publisher, 
bookseller,  or  other  person,  to  introduce  any  book,  apj)aratus,  furniture,  or  any 
other  article  whatever,  in  the  common  schools  of  this  state,  or  any  one  or  more 
of  tliem,  or  directly  or  indirectly  contract  for  or  receive  any  gift  or  reward  for 
so  introducing  or  recommending  the  same;  and  auy  officer  so  acting  or  receiving 
must  be  deemed  guilty  of  a  misdemeanor,  and  on  conviction,  be  punished  by 
fine  or  impi-isonment,  and  be  removed  from  office.  [New  section,  approved 
March  13,  1.S74;  Amendments  1873-4,  85;  took  eff'ect  from  passage. 

1871.  Apjplicanls  must  present  evidence  of  good  character. 

Sec  1871.  Diplomas  or  certificates  shall  be  issued  by  any  state,  county,  city, 
or  city  and  county  board  of  examination,  to  such  persons  only  as  shall  have 
given  evidence  of  good  moral  character.  [Amendment,  approved  March  28, 1874; 
Amendraeidsl^l'i-4:,  111;  took  effect  from  pjassage.'^^'^ 

1872.  Appeals  from  orders  revoking  certificates  or  diplomas. 

Sec  1872.  AVhen  a  state  certificate  or  dij^loma  is  revoked,  Wie  holder  may 
appeal  to  the  state  board  of  education;  and  Avljen  any  other  certificate  is 
revoked  he  may  appeal  to  the  state  board  of  examination. 

(a)  Original  section :  must  produce    satisfactory  evidence  of   good  moral 

b£C.  1871.  Apiilicaats  for   diplomas  or  tcrtiCcatea     character. 

252 


EDUCATION.  1873-1877 

1873.  School  officers  may  administer  oaths. 

Sec.  1873.  Every  officer  cbarged  with  the  performance  of  duties  tinder  the 
jirovisions  of  this  chapter  may  administer  and  certify  oaths  relating  to  offices  or 
official  matters  concerning  public  schools. 

1874.  Hooks  once  adopted  must  be  continued  four  years — new  hooks,  ivhen  and 
how  adopted. 

Sec.  1874.  Any  books  once  adopted  as  part  of  a  uniform  series  of  text-books 
must  be  continued  in  use  for  not  less  than  four  years;  provided,  that  if  at  any 
time  after  their  adoption,  the  retail  price  of  such  books  is  raised  above  the  first 
introduction  price,  some  other  books  may  be  substituted  for  such  books;  pro- 
vided further,  that  such  substitution,  or  the  adoption  of  new  books  in  j^lace  of 
books  which  have  been  in  use  not  less  than  four  years,  must  be  in  the  following 
manner : 

1.  At  least  six  months'  notice  must  be  given  of  any  proposed  change  of  text- 
books. 

2.  Publishers  of  text-books  must  be  invited  to  submit  proposals  for  the  sup- 
plying of  the  required  text-books;  said  proposals  must  be  accompanied  by 
sample  copies  of  the  books  proposed  to  be  furnished,  together  with  the  state- 
ment of  the  retail  price  at  which  the  books  will  be  sold  in  this  state,  for  the 
full  time  for  which  the  books  are  adopted. 

3.  If  no  projDosals  are  received,  as  required  in  the  preceding  subdivision,  or 
if  the  books  proposed  to  be  furnished  are  inferior  in  contents,  or  in  binding, 
paper,  typograj^hy,  or  presswork,  or  are  to  be  sold  at  a  higher  retail  price  than 
the  books  already  in  use,  then  the  books  already  in  use  must  be  continued  in 
use.  [Amendment,  approved  March  28,  1874;  Amendments  1873-4,  112;  took 
effect  from  passage.^''^ 

An  Act  to  prevent  changes  in  the  text-books  in  use  in  the  public  schools. 
Approved  December  13,  1875;  1875-6, 1. 

Text-books  to  be  continued  in  use. 

Section  1.  The  text-books  in  use  in  the  public  schools  during  the  years 
eighteen  hundred  and  seventy-three,  eighteen  hundred  and  seventy-four,  and 
eighteen  hundred  and  seventy-five,  shall  be  continued  in  use  in  all  the  public 
schools  of  this  state  until  otherwise  provided  by  statute,  any  j)rovision  in  the 
existing  law,  or  any  act  of  the  state  board  of  education  done,  or  to  be  done, 
to  the  contrary  notwithstanding. 

Sec.  2.  This  act  shall  be  in  force  from  and  after  its  passage. 

1875.  Penalties  for  neglect  to  use  the  books  adopted. 

Sec.  1875.  If  any  city  or  district  refuse  or  neglect  to  use  the  books  that 
may  be  prescribed,  or  use  any  other  text-books  in  any  of  the  prescribed 
studies,  the  superintendent  of  public  instruction  must  withhold  from  such  city, 
town,  or  district  twenty -five  per  cent,  of  all  state  school  moneys  to  which  it 
may  be  entitled  until  it  comply;  and  any  moneys  so  Avithheld  must  be  appor- 
tioned by  the  superintendent  at  the  next  annual  apportionment  in  the  same 
manner  as  other  school  moneys  in  the  treasury. 

1876.  Certain  persons  not  to  be  interested  in  contracts. 

Sec  1876.  No  school  trustee  or  member  of  any  board  of  education  must  be 
interested  in  any  contract  made  by  the  board  of  which  he  is  a  member;  and  any 
contract  made  in  violation  of  this  provision  is  void. 

1877.  Printing  and  binding,  by  tvhom  to  be  done. 

Sec.  1877.  All  printing  or  binding  required  under  this  chapter  must  be  exe- 

(a)  The  original  eection  consisted  of  the  first  clause  alone  down  to  and  including  the  words  "  four  years." 

253 


1877-1898  POLITICAL  CODE. 

cuted  by  the  state  iirinter  in  the  form  and  manner  and  at  the  prices  of  other 
state  jmnting,  and  be  paid  for  in  like  manner. 

1878.  Scliool  year,  commencement  of. 

Sec.  1878.  The  school  year  begins  on  the  first  day  of  July,  and  ends  on 
the  last  dav  of  June. 


TITLE  lY. 


Ch.uter    I.  Enrolled  Militia 1895 

II.  National  Guard 1912 

m.  Calling  and  Drafting  the  Militl^.  into  Actual  Service  ....  2039 

IV.  Courts  Martial  and  of  Inquiry 2076 

V.  Board  of  Military  Auditors 2093 

VI.  Adjutant-General 2107 

CHAPTEE  I. 

ENEOLLED   MILITIA. 

1395.   Who  are  subject  to  military  duty. 

Sec.  1895.  Every  able-bodied  male  inhabitant  of  this  state,  except  Mongo- 
lians and  Indians,  between  the  ages  of  eighteen  and  forty-fi.ve  years,  not  exempt 
by  law,  is  subject  to  militaiy  duty.  But  no  alien  is  obliged  to  serve  or  bear 
arms  against  the  state  to  which  his  allegiance  is  due.     > 

1896.  Who  are  exempt  from  military  duty. 

Sec  1896.  The  following  persons  are  exempt  from  military  duty  and  enroll- 
ment: 

1.  jMinisters  of  religion; 

2.  Civil  and  military  officers  of  the  United  States; 

3.  Officers  of  foreign  governments; 

4.  Civil  officers  of  the  State  of  California; 

5.  All  persons  exempted  from  military  duty  by  the  laws  of  the  United  States. 

1897.  Assessor  to  enroll  persons  subject  to  military  duty — Taos  collector  to  make  en- 

roUmeid  in  San  Francisco. 
Sec  1897.  The  district  or  county  assessor  of  each  and  eveiy  revenue  district 
or  county  in  this  state  must,  at  the  same  time  in  each  year  when  he  prepares  a 
roll  containing  the  taxable  inhabitants  of  his  district  or  county,  enroll  all  the 
inhabitants  thereof  sul)ject  to  military  duty,  which  roll  must  be  sworn  to  by 
him  and  delivered  to  the  clerk  of  the  board  of  supervisors  at  the  same  time  he 
delivers  the  assessment  roll.  In  the  city  and  county  of  San  Francisco  the  tax 
collector  must  perform  the  duties  by  this  section  imposed  uj^on  assessors. 

1898.  Penally  for  neglect  or  refusal  to  make  return. 

Sec.  1898.  If  any  assessor  or  the  tax  collector  of  the  city  and  county  of  San 
Francisco  neglects  or  refuses  to  pei-fonn  any  of  the  duties  required  of  him  by 
this  chapter,  he  is  subject  to  the  same  liabilities  as  are  provided  by  lawfor  a 
neglect  or  refusal  to  perform  any  of  the  duties  required  of  him  in  the  assessment 
of  taxes,  and,  in  addition,  forfeits  not  less  than  three  hundred  nor  more  than 
one  thousand  dollars,  to  be  sued  for  in  the  name  of  the  people  of  the  state,  by 
the  district  attorney  of  the  respective  county,  and  when  recovered  to  be  i^aid 
into  the  military  fund  of  the  state.     If  the  clerk  of  the  board  of  equalization 

254 


MILITIA.  1898-1913 

neglects  or  refuses  to  make  and  deliver  to  the  lirigadier-general  of  the  brigade 
to  which  his  county  belongs  the  triplicate  of  the  military  assessment  roll,  as 
directed  in  this  chapter,  he  forfeits  not  less  than  three  hundred  nor  more  than 
five  hundred  dollars,  to  be  sued  for,  recovered,  and  disposed  of  in  the  same 
manner. 

1899.  Boards  of  equalization  to  correct  the  roll. 

Sec.  1899.  The  board  of  equalization  must  correct  the  roll  at  the  same  time 
and  in  the  same  manner  as  is  prescribed  by  law  for  the  correction  of  the  assess- 
ment roll. 

1900.  Copies  to  he  forwarded  to  brigadier-general. 

Sec.  1900.  The  clerk  of  the  board  of  super^dsors  must  deliver  to  the  briga- 
dier-general of  the  brigade  to  which  his  county  belongs  a  triplicate  of  such  roll 
certified  by  him,  within  ten  days  after  the  board  of  equalization  have  completed 
their  corrections. 

1901.  Compensation  of  assessors. 

Sec.  1901.  The  compensation  of  assessors  for  making  out  the  military  roll 
must  be  determined  by  the  board  of  supervisors  of  the  several  counties,  at  the 
rate  of  five  dollars  for  each  one  hundred  names  of  persons  returned  by  the 
assessors  as  subject  to  military  duty. 

1902.  Bluster  roll  to  he  made  by  brigadier-general. 

Sec.  1902.  Each  brigadier-general  must,  on  the  first  Monday  in  October  of 
each  year,  make  from  the  rolls  received  by  him  a  muster  roll,  showing  the 
number  of  persons  within  the  limits  of  his  command  subject  to  militaiy  duty, 
the  original  of  which,  signed  by  him,  must  be  filed  in  his  office,  and  a  copy 
thereof  transmitted  at  once  to  the  adjutant-general. 

CHAPTER  II. 

THE  NATIONAL    GUARD. 

Article  I.  General  Provisions  relating  to  National  Guard 1912 

II.  Companies 1951 

III.  Regiments  and   Battalions 1982 

IV.  Divisions  and   Brigades 2003 

V.  Parades  and  Drills 2018 

ARTICLE  I. 

GENEEAL    PROVISIONS    EEL.\TING    TO    THE    NATIONAL    GUAED. 

1912.  National  guard,  of  what  it  consists. 

Sec  1912.  The  organized  uniformed  militia  of  the  state  are  known  as  the 
national  guard.  This  force  shall  not  exceed  thirty-six  companies,  as  follows: 
thirty-one  comjjanies  of  infantiy,  three  companies  of  cavalry,  and  two  of 
artillery;  and  must  be  located  throughout  the  state  with  reference  to  the  mili- 
tary Avants  thereof,  means  of  concentration,  and  other  military  requirements. 

j     [Amendment,  approved  March  30,  1876;   Amendments  1875-6,  30;  took  effect  from 

I     and  after  July  1,  1876.^*> 

'     1913.  Board  of  location  and  organization. 

Sec.  1913.  The  commander-in-chief,  major-general,  adjutant-general,  and  the 

,     brigadier-general  of  each  brigade,  constitute  a  board  for  location  and  organiza- 

\     tion  of  the  national  guard  within  such  brigade,  with  power  to  transfer,  attach, 
or  disband  companies,  and  to  reorganize  at  pleasure  regiments  and  battalions. 

}  (n)  The  original  section   instead  of  "militia"  had     different  arms,  not  to  exceed  in  all  forty;"  Instead  of 

I      the  word  "  troops;"  instead  of  "  shall  not  exceed  thirty-     "  thirty-one  "  the  words  "  thirty-two,"  and  instead  of 
1      Bix  companies  "  the  words  •'  consists  of  companies  of     "  three  companies  "  the  word  "  six." 

255 


1914-1023  POLITICAL  CODE.  ^ 

1914.  Xaiional  guard  io  he  organized  into  regiments. 

Sec.  11>14.  All  companies  of  the  national  guard  must  as  far  as  in-acticable  be 
organized  into  regiments,  battalions,  and  batteries. 

1915.  What  ojficers  belong  to. 

Sec.  11)15.  All  commissioned  officers  of  the  staff  of  the  commander-in-chief, 
the  adjutant-general,  and  the  officers  of  his  staff,  the  major-general  and  briga- 
dier-genei-als,  and  all  officers  of  their  respective  staffs,  belong  to  the  national 
guard,  and  are  at  all  times  subject  to  be  called  into  active  service  by  the  com- 
mander-in-chief; and  when  called  into  active  service,  each  officer  must  be  called 
and  mustered  according  to  his  commission. 

1916.  Governor  commander-in-chief. 

Sec.  1916.  The  governor  is  commander-in-chief  of  the  national  guard. 

1917.  Staff  of  cov\mander-in-chief. 

Sec.  1917.  His  staff  consists  of  one  adjutant-general,  with  the  rank  of  briga- 
dier-general; one  chief  engineer,  one  paymaster-general,  one  judge  advocate 
general,  and  one  surgeon-general,  each  with  the  rank  of  colonel,  and  six  aids- 
de-camp,  with  the  rank  of  lieutenant-colonel;  appointed  by  and  holding  office 
at  the  pleasure  of  the  commander-in-chief. 

1918.  Appointment  and  term  of  office  of  generals. 

Sec  1918.  The  commander-in-chief,  by  and  with  the  advice  and  consent  of 
the  senate,  must  apjDoint  one  major-general,  and  for  each  brigade  of  the  na- 
tional guard  of  the  state,  one  brigadier-general,  who  must  be  citizens  of  the 
fnited  States  and  of  the  state;  and  the  brigadier-generals  must  be  residents  of 
localities  within  the  brigades  for  which  they  are  appointed.  They  hold  their 
offices  for  the  term  of  four  years. 

1919.  Restrictions  in  residence  of  staff  officers. 

Skc.  1919.  The  staff  officers  must  be  residents  of  the  state  and  of  their  re- 
spective brigades. 

1920.  Effect  of  line  officers  accepting  commissions  on  staff. 

Sec.  1920.  Any  officer  of  a  regiment,  battalion,  or  company,  accepting  any 
staff  ajipointment,  except  that  of  adjutant  and  quartermaster,  is  held  to  have 
resigned  his  commission  in  such  regiment,  battalion,  or  company. 

1921.  Oath  of  officers  and  members. 

Sec.  1921.  All  officers  and  soldiers  of  the  national  guard,  on  becoming  mem- 
bers and  before  jierforming  duty,  must  take  and  subscribe  the  following  oath, 
which  all  commissioned  officers  thereof  are  authorized  to  administer:  "  I  do 
solemnly  swear  that  I  -will  support  the  constitution  of  the  United  States  and 
the  constitution  of  the  State  of  California,  and  will  maintain  and  defend  the 
laws  and  all  officers  employed  in  administering  the  same."  "Which  oath,  certified 
by  the  officer  administering  the  same,  must  be  returned  to  the  adjutant-general 
and  l>e  preserved  with  the  rolls  of  companies. 

1922.  Systnn  of  instruction. 

Sec  1922.  The  systems  of  instruction  prescribed  for  the  different  arms  in  the 
United  States  army  must  be  followed  in  the  military  drills  and  instruction  by 
the  national  guard  and  the  enrolled  militia  when  called  into  active  service. 

1923.  Uniform. 

Sjx.  1923.  Tiie  uniform  of  the  national  guard  is  the  same  as  that  adopted 
and  in  use  by  similar  troops  in  the  army  of  the  United  States.  Companies 
already  organized  may  wear  the  uniform  now  in  use  until  supplied  l)y  the  state 
with  the  proper  uniform,  after  whicli  the  uniform  so  supplied  must  be  worn, 
except  at  company  parades  or  drills.     No  moneys  received  from  the  state  musii, 

25G 


MILITIA.  1923-1932 

be  used  or  applied  to  the  purchase  of  uniforms  other  than  those  first  in  this 
section  mentioned.  The  uniform  of  generals  and  staff  officers  is  similar  to  that 
of  officers  of  the  same  grade  in  the  army  of  the  United  States. 

1924.  Rank  of  officer. 

Sec.  1924.  All  commissioned  officers  of  regiments,  battalions,  and  companies 
of  the  national  guard  must  take  rank  according  to  the  date  assigned  them  by 
their  commissions;  and  when  two  of  the  same  grade  are  of  the  same  date  their 
rank  must  be  determined  by  length  of  j)i'evious  military  service  in  the  state; 
and  if  of  equal  service,  then  by  lot.  Officers  of  regiments,  battalions,  and 
companies  of  the  national  guard  in  all  cases  are  of  sujDerior  rank  to  officers  of 
the  enrolled  militia  of  the  same  grade,  irrespective  of  the  date  of  theii-  com- 
missions. 

1925.  Officers  re-elected  not  to  he  recommissioned . 

Sec.  1925.  When  an  officer  is  re-elected  no  new  commission  issues,  but  a 
certificate  of  such  election  must  be  indorsed  upon  his  original  commission. 

1926.  Resignations,  how  made. 

Sec  1926.  Any  officer  resigning  his  commission  must  do  so  in  writing,  and 
transmit  the  same  through  his  immediate  commanding  officer,  who  will  make 
his  indorsement  thereon,  and  the  resignation  takes  effect  when  accepted  by  the 
commander-in-chief. 

1927.  Vacancies  in  elective  offices,  how  filled. 

Sec  1927.  Vacancies  in  elective  offices  are  filled  by  election.  "When  vacan- 
cies occur  at  an  election  through  the  promotion  of  any  officer,  such  vacancies 

may  then  and  there  be  filled  without  further  order. 

■'/' 

1928.  Absence  or  removal,  when  deemed  resignation. 

Sec  1928.  Any  commissioned  officer  who  removes  from  the  limits  of  his 
brigade  is  deemed  to  have  resigned,  and  the  major-general,  brigadier-general, 
or  any  commissioned  officer  who  absents  himself  from  the  state  for  more  than 
three  months,  without  the  permission  of  the  commander-in-chief,  is  deemed  to 
have  resigned. 

1929.  Discharges,  when  and  by  ivhom  granted. 

Sec  1929.  No  officer  of  the  national  guard  inferior  in  gi-ade  to  a  regimental 
or  battalion  commander  or  an  officer  commanding  an  unattached  comj^any,  has 
power  to  grant  discharges  to  non-commissioned  officers,  artificers,  musicians, 
or  privates.  All  discharges  must  be  in  writing,  and  must  set  forth  fully  the 
cause  of  the  discharge,  and  be  signed  by  the  officer  granting  it. 

1930.  Disobedience  of  orders,  unsoldierlike  conduct — penalty. 

Sec  1930.  Any  officer  or  private  on  military  duty  who  disobeys  the  orders  of 
his  superior,  uses  reproachful  or  abusive  language  to  his  superior,  or  misbe- 
haves or  demeans  himself  in  an  uuofficer  or  unsoldierlike  manner,  must  be 
immediately  arrested,  if  a  commissioned  officer,  and  if  a  non-commissioned 
officer  or  soldier,  must  be  disarmed  and  put  under  guard,  and  tried  and  punished 
by  a  court-martial,  according  to  law  and  military  usage. 

1931.  Interrupting  officer  or  private  in  discharge  of  his  duty — penalty. 

Sec  1931.  If  any  person  interi-upts,  molests  or  insults-,  by  abusive  words  or 
behavior,  any  officer  or  private  while  in  the  perfonnance  of  his  military  duty,  he 
must  be  immediately  ]yut  under  guard  and  kept,  at  the  discretion  of  the  com- 
manding officer  of  the  forces  engaged  in  the  performance  of  such  duty,  until 
the  setting  of  the  sun  of  the  same  day  on  which  the  offense  is  committed. 

1932.  Expulsion  for  disgraceful  cause  bar  to  re-entry. 

Sec  1932.  No  non-commissioned  officer,  ariificer,  musician  or  private  expelled 
from  his  company,  or  dismissed  from  service  for  any  disgraceful  cause,  must  be 
17  257 


1932-1937  POLITICAL  CODE. 

permitted  to  again  euter  any  company  of  the  national  guard,  except  the  offense 
is  pardoned  by  the  commander-in-chief. 

1933.  Protection  of  paradr  ground. 

Sec.  1933.  The"  commanding  officer  of  any  parade,  review  or  drill,  and  the 
officer  in  charge  of  any  rendezvous,  may  cause  the  ground  selected  for  that  pur- 
pose to  be  marked  or  designated  in  such  a  manner  as  not  to  obstruct  the  passage 
of  travelers  on  any  public  highway;  and  if  any  person,  during  the  occupation 
of  such  ground  for  such  military  purpose,  enters  upon  such  ground  without  the 
pennission  of  the  officer  commanding  or  in  charge,  he  may  be  put  and  kept 
under  guard,  by  the  order  of  such  commander,  until  the  setting  of  the  sun  of 
the  same  day. 

1934.  By-laics. 

Sec.  1934.  Eegimental,  battalion  and  company  rules  of  government  and  by- 
laws, regularly  adopted  and  approved  by  such  regiments,  battalions  or  com- 
panies, not  inconsistent  Avith  the  provisions  of  this  title,  may  be  adopted  and 
enforced  in  such  regiments,  battalions  and  companies. 

1935.  Fines. 

Sec.  1935.  All  fines  and  penalties  for  non-attendance  upon  drills,  parades, 
and  inspections,  legally  determined  and  imj)osed  under  the  provisions  of  such 
rules  and  by-laws, 'may  be  collected  by  action  in  justice's  court,  in  the  name  of 
the  people  of  the  State  of  California;  and  the  books  and  records  of  regiments, 
battalions,  and  companies,  and  the  proceedings  under  vdiich  delinquents  are 
fined,  are  prima  facie  evidence  of  the  facts  therein  stated.  [Amendment,  ap- 
proved March  30,  1874;  Amendments  1873-4,  35;  took  effect  July  6,  1874.'''^ 

1936.  Exemption  from  poll  tax,  etc. 

Sec.  1936.  All  officers,  musicians,  and  privates  of  the  national  guard,  who 
comply  with  all  military  duties,  as  provided  in  this  chapter,  are  eii titled  to  the 
following  privileges  and  exemptions,  viz. :  Exemption  from  payment  of  jdoII 
tax,  road  tax,  and  head  tax  of  ever}"  description.  All  officers,  non-commis- 
sioned officers,  musicians,  and  privates,  who  have  faithfullj^  served  in  the  mili- 
tary service  of  this  state,  for  the  space  of  seven  consecutive  years,  and  receive 
the  certificate  of  the  adjutant-general  certifying  the  same,  are  thereafter 
exempted  from  further  military  service,  except  in  time  of  war.  And  the  adju- 
tant-general must  issue  such  certificate  of  exemption,  when  it  appears  that  the 
party  applying  is  entitled  to  the  same.  [Amendment,  approved  March  30, 1874; 
Amendments  1873-4,  36;  took  effect  July  6,  1874.(''> 

1937.  Lid  of  pei'soyis  so  exempt  to  he  given  to  assessor. 

Sec.  1937.  Each  commander  of  a  comi^any  of  the  national  guard  must  make 
out  a  list,  certified  under  oath  before  a  notary  public,  on  or  before  the  first  day 
of  !Miirch  of  each  year,  of  every  officer,  non-commissioned  officer,  musician, 
and  private  of  the  company  entitled  to  exemption  from  tax,  which  list  must  be 
transmitted  to  the  colouel  or  commanding  officer  of  the  regiment  or  battalion 
to  which  such  company  belongs,  who  must  transmit  the  same,  together  with  a 
list  of  his  i'uAd  and  stall"  and  non-commissioned  staff,  made  out  in  like  manner 
and  certified  by  him  under  oath  before  a  notary  public,  to  the  brigadier-general, 
which  lists,  if  correct  and  approved  by  the  brigadier-general,  must  by  him  be 
sei'ved  upon  the  county  assessor  of  the  county  in  which  such  regiments,  bat- 
talions, or  companies  are  located;  and  the  county  assessor  must  thereupon  note 
opposite  the  names  of  all  persons  such  exemption. 

(o)  The  original  Bection  had  the  word  "  priiriary  "  (';)  The  original  section  after  the  words  "  head  tax 
instead  of  "  prima  facie."  of  every  description  "  had  the  words  "  exemption  from 

jury  duty  and  from  sen-ice  on  any  poBse  comitatiis." 

258 


MILITIA.  1938-1956 

1938.  Commander-in-chief  may  disband,  etc. 

Sec.  1938.  The  commauder-iu-chief  may  at  any  time  disLand  any  portion  of 
the  national  guard. 

1939.  Bides  and  regulations  of  United  States  army,  how  far  applicable. 

Sec.  1939.  The  rules  and  regulations  of  the  army  of  the  United  States  so  far 
as  the  same  may  be  applicable  and  not  inconsistent  with  the  laws  of  this  state, 
constitute  the  rules  and  regulations  for  the  government  of  the  national  guard. 

1940.  No  fees  allowed  to  officers  for  administering  oaths. 

Sec.  1940.  No  officer  is  entitled  to  charge  or  receive  any  fee  or  compensation 
for  administering  or  certifying  any  oaths  administered  or  certified  under  the 
provisions  of  this  chapter. 

AKTICLE  II. 

COMPANIES,    AND    THE    DISTRIBUTION    OF    ARMS. 

1951.  Applications  for  leave  to  organize  companies. 

Sec  1951.  Whenever  a  sufficient  number  of  persons,  residents  of  any  county 
in  this  state,  subject  to  military  duty,  subscribe  a  call  for  the  organization  of  a 
company,  the  adjutant-general,  upon  the  application  of  such  person,  and  with 
the  approval  of  the  general  of  brigade,  must  present  the  same  to  the  board  for 
the  organization  of  the  national  guard. 

1952.  If  accepted,  brigadier-general  must  appoint  person  to  organise. 

Sec  1952.  If  such  company  is  accepted,  the  adjutant-general  must  direct  the 
brigadier-general  to  appoint  some  person,  resident  of  the  county,  to  open  a  book 
in  which  to  enter  the  names  of  persons  so  applying,  and  must  fix  a  time  and 
place  of  meeting  for  the  purpose  of  organization,  by  giving  ten  days,  notice 
thereof,  by  publication  in  some  newspaper,  or  by  posting  notices  in  at  least 
three  public  p)laces  in  the  county. 

1953.  Organization. 

Sec  1953.  The  person  appointed  must: 

1.  Preside  at  such  meeting  and  organize  the  same; 

2.  Superintend  the  election  for  commissioned  officers  of  the  company,  which 
must  be  by  ballot; 

3.  Make  out,  after  such  election,  a  list  of  persons  organized,  a  certificate  of 
each  officer  elected,  together  with  a  copy  of  the  proceedings  of  the  meeting,  and 
a  copy  of  his  aj^pointment,  and  of  the  notice  of  the  meeting,  certified  by  him, 
and  transmit  them  to  the  brigadier-general  commanding  the  brigade. 

1954.  Brigadier-general  to  act  upon  certificate,  and  transmit  it. 

Sec  1954.  The  brigadier-general  must,  if  found  correct,  transmit  the  same, 
with  his  approval,  to  the  adjutant-general. 

1955.  Company  to  be  listed  and  officers  commissioned. 

Sec  1955.  If  such  company  has  been  organized  and  the  officers  elected  in 
conformity  with  the  provisions  of  this  chapter,  the  company  must  be  listed  in 
the  office  of  the  adjutant-general  as  a  company  of  the  national  guard,  and  the 
officers  elected  must  be  commissioned  and  hold  office  for  the  term  of  two 
years. 

1956.  Non-commissioned  officers  of  companies. 

Sec  1956.  All  company  non-commissioned  officers  of  the  national  guai'd  must 
be  nominated  by  commanders  of  their  respective  companies,  subject  to  the  ap- 
proval of  the  commanders  of  the  regiment  or  battalion;  and  such  non-commis- 
sioned officers  cannot  thereafter  be  removed  or  reduced  in  rank  excejot  as  herein 
provided,  or  by  the  commander  of  the  regiment  or  battalion,  for  neglect  of 
duty  or  other  sufficient  cause. 

259 


1957-1963  POLITICAL  CODE. 

1957.  Non-coi7wnssioned  officers  of  haiteries. 

Sec.  1957.  Commanaers  of  batteries  and  unattached  companies  liave  the  same 
authority  with  non-commissioned  officers  as  is  herein  conferred  upon  command- 
ers of  regiments  and  battalions. 

1958.  Company  name  or  number. 

Sec.  1958.  Each  company  of  the  national  guard  may  adopt  a  distinct  name; 
but  if  attached  must  be  known  by  a  particular  letter  or  number  in  the  regiment 
or  battalion  to  which  it  belongs. 

1959.  Compamj  roll  and  term  of  service. 

Sec.  1959.  All  persons  on  entering  the  national  guard  must  sign  a  company 
roll,  and  join  for  2iot  less  than  three  years'  service. 

1960.  Person  not  to  he  member  of  iivo  companies  at  the  same  time. 

Sec.  19G0.  No  j)erson  can  be  a  member  of  two  companies  at  the  same  time; 
and  any  member  of  a  company  who  removes  beyond  the  limits  of  the  county  is 
discharged  from  such  company. 

1961.  Companies,  how  armed  and  equipped. 

Sec  19G1.  The  companies  of  the  national  guard  are  armed  and  equipped  in 
the  same  manner  as  similar  corps  in  the  United  States  army. 

1962.  JSumber  of  officers  and  privates. 

Sec.  19G2.  The  comj^anies  of  the  national  guard  are  composed  of  the  following 
officers  and  privates,  viz. : 

1.  Each  company  of  cavalrj',  of  one  captain,  one  first  lieutenant,  one  senior 
and  one  junior  second  lieutenant,  five  sergeants,  four  corporals,  one  trumpeter, 
one  farrier  and  not  less  than  thirty  nor  more  than  eighty  privates; 

2.  Each  company  of  infantry,  of  one  captain,  one  first  lieutenant  and  one 
second  lieutenant,  one  orderly  sergeant,  one  quartermaster  sergeant,  four  ser- 
geants, eight  corporals,  one  marker,  one  drummer,  one  fifer  and  not  less  than 
forty  nor  more  than  one  hundred  privates; 

3.  Light  batteries,  of  one  captain,  two  first  lieutenants,  two  second  lieuten- 
auts,  one  first  sergeant,  one  quartermaster  sergeant,  six  sergeants,  twelve  cor- 
l)oraLs,  two  musicians,  one  wagoner  and  not  less  than  thirty  privates. 

1963.  Requisition  for  arms  and  equipments. 

Sec.  1903.  "When  a  company  is  organized,  its  commanding  officer  may  make 
a  requisition  thi'ough  the  proper  military  channel  for  such  arms  and  accoutre- 
ments, ammunition,  clothing  and  stores  as  are  required. 

An  Act  to  furnish  arms  for  the  use  of  military  academies  in  the  state. 
Approved  February  20, 1872;  1871-2,121. 

Military  academy — majors. 

Section  1.  That  Avhen  a  military  academy  has  been  established  within  the 
state,  having  not  less  than  eighty  boys,  uniformed,  drilled,  and  instructed  in 
strict  accordance  with  the  tactics  of  the  regular  United  States  army  service,  and 
all  its  course  of  education  and  economy  conducted  upon  strict  military  prin- 
ciples, the  military  instructor  of  such  academy,  when  regularly  elected  by  the 
board  of  trustees  or  other  lawful  authority  of  the  academy,  be  commissioned  in 
the  national  guard  of  California,  with  the  rank  of  major. 
JJond  and  issue  of  arms,  etc. 

Sec  2.  That  upon  giving  bond,  with  good  security,  to  be  approved  by  the 
county  judge  of  tlie  county  where  the  academy  is  situated,  conditioned  for  the 
safe  keeping  against  fire,  loss,  and  against  all  damages,  in  twice  the  value,  that 
arms  and  accoutrements,  the  property  of  the  state,  be  issued  for  the  use  of  such 
military  academy, 

2G0 


MILITIA.  1963-1971 

Eequisition. 

Sec.  3.  The  adjutant-g-eueral  of  the  state  is  liereby  authorized  to  issue  such 
arms  and  accoutrements  as  may  be  needed  by  the  said  military  academies,  with- 
out a  monthly  allowance,  in  the  same  manner  as  arms  and  accoutrements  are 
issued  to  regular  organized  comjDanies  of  the  national  guard  of  California,  upon 
requisition  made  for  this  purpose,  approved  by  the  commander-in-chief. 

Sec.  4.  This  act  shall  take  effect  immediately. 

1964.  Proceedings  on  approval  of  requisition. 

Sec.  1964.  If  the  commander-in-chief  approve  the  requisition,  he  must  make 
an  order  upon  the  back  thereof  directing  the  issue  by  the  adjutant-general, 
who  must  immediately  notify  the  officer  making  the  requisition  that  the  arms, 
accoutrements,  and  ammunition,  or  any  portion  thereof,  are  ready  to  be 
issued. 

1965.  Bonds  and  seciirihj. 

Sec.  1965.  Thereupon  such  officer  must  give  such  bonds  and  security  as  may 
be  required  by  the  adjutant-general  to  secure  the  state  from  loss  on  account  of 
use  or  misax^plication  thereof. 

1966.  Issue  of  arms,  etc. 

Sec  1966.  Such  bonds  being  to  his  satisfaction,  and  on  receiving  duplicate 
receipts  from  such  company  officer,  the  adjutant-general  must  make  the  issue. 

1967.  Receipt. 

Sec  1967.  The  adjutant-general  must  file  one  copy  of  such  receipts  in  his 
office,  and  transmit  the  other  to  the  general  of  brigade. 

1968.  Inspection  of  arms,  etc. 

Sec  1968.  All  arms,  equipments,  and  military  stores  are  subject  to  examina- 
tion by  the  inspector  and  ordnance  officers  of  the  state,  and  of  any  other  officer 
designated  by  the  commander-in-chief  for  that  purpose. 

1969.  Repair  of  arms,  etc. 

Sec  1969.  If  such  officer  find  any  of  such  property  out  of  repair,  injured  or 
defective,  he  must  immediately  notify  the  facts  to  the  commander-in-chief 
through  the  proper  channel,  who,  if  the  damage  is  not  repaired,  and  the  defects 
and  losses  supplied  within  a  reasonable  time,  must  order  the  same  to  be  done 
u,nder  the  direction  of  some  officer;  and  the  vouchers  for  the  expense  thereof, 
when  audited  by  the  state  board  of  military  auditors,  must  be  paid  from  the 
military  fund  on  the  warrant  of  the  controller. 

1970.  Mastei's  and  muster-rolls. 

Sec  1970.  The  commanding  officer  of  each  company  must,  in  the  month  of 
September  in  each  year,  muster  and  inspect  his  company,  and  make  out  and 
certify  triplicate  muster-rolls  showing  the  names  and  number  of  the  members  of 
the  company,  the  officers  in  the  order  of  their  rank,  and  the  privates  in  alpha- 
betical order,  and  he  must  also  attach  to  each  roll  a  list  of  the  ordnance, 
ordnance  stores,  arms,  accoutrements,  clothing,  and  other  property  of  the  state 
in  possession  of  the  company.  He  must  transmit,  through  the  proper  militaiy 
channels,  one  copy  of  the  roll  and  list  attached,  to  the  major-general,  one  to 
the  brigadier-general  of  his  brigade,  and  one  to  the  adjutant-general. 

1971.  Same. 

Sec  1971.  If  such  company  forms  a  part  of  any  organized  battalion  or  regi- 
ment, the  commanding  officer  thereof  must  transmit  the  same,  with  a  muster- 
roll  of  the  field  and  staff  officers  of  his  regiment  or  battalion,  to  the  adjutant- 
general,  through  the  proper  channels  of  military  correspondence. 

261 


1972-1989  POLITICAL  CODE, 

1972.  Same. 

Sec.  1972.  T\'ben  any  regiment  or  battalion  is  composed  of  companies  located 
iu  any  one  town  or  city  of  the  state,  the  same  may  be  mustered  by  its  com- 
manding officer  as  a  regiment  or  battalion. 

AKTICLE  III. 

REGIMENTS   AND    BATTALIONS. 

1982.  liegimenfs  and  haifalions  of  infantry. 

Sec.  1982.  A  regiment  of  infantry  of  tlie  national  guard  consists  of  not  less 
than  six  nor  more  than  eight  companies.  Any  less  number  of  companies  than 
six  constitute  a  battalion. 

1983.  Ii''gimen{s  of  cavalry. 

Sec  1983.  A  regiment  of  cavalry  consists  of  not  less  than  eight  nor  more 
than  twelve  companies. 

1984.  Field  officers,  number  and  designation. 

Sec  1984.  The  field  officers  of  a  regiment  are  one  colonel,  one  lieutenant- 
colonel,  and  one  major.  A  cavalry  regiment  may  have  two  majors.  The  field 
officers  of  a  battalion,  when  composed  of  six  companies  and  less  than  eight, 
are  one  lieutenant-colonel  and  one  major;  when  comiDOsed  of  three  companies 
and  less  than  six,  then  one  major  only. 

1985.  Mode  of  election. 

Sec.  1985.  Such  officers  are  elected  b}'  the  commissioned  officers  of  the  differ- 
ent compauies  comprising  the  regiment  or  battalion;  and  if  the  regiment  or 
battalion  is  already  formed,  by  all  the  commissioned  officers  thereof,  and  hold 
office  for  the  term  of  four  years.  Upon  application  of  the  officers  entitled  to 
elect,  the  general  of  brigade  to  which  such  regiment  or  battalion  is  attached  or 
to  be  attached,  must  apjwint  a  suitable  person  to  preside  at  the  election,  who 
must  give  notice  of  his  appointment,  of  the  time  and  place  of  holding  the  elec- 
tion, and  of  the  offices  to  be  filled,  which  notice  must  be  published  at  least  ten 
days  in  some  newsimper  published  M'ithin  the  limits  of  the  brigade,  or,  if  no 
paper  is  jjublished  within  such  limits,  by  posting  notices  in  at  least  three  con- 
spicuous places. 

1986.  Returns  of  election. 

Si:c.  198G.  Such  presiding  officer  must  make  return  of  the  election  held, 
through  the  proper  military  channels,  to  the  adjutant-general,  who,  upon  find- 
ing tlie  same  in  accordance  with  the  provisions  of  this  chapter,  must  notify  the 
commander-in-chief  thereof. 

1987.  Battalions  of  light  artillery. 

Sec.  1987.  "When  two  or  more  companies  of  light  artillery  are  in  the  same 
brigade,  they  must  be  formed  into  a  battalion  and  be  commanded  by  a  major, 
if  composed  of  two  companies,  and  by  a  lieutenant-colonel  if  of  three  compa- 
nies and  less  than  six. 

1988.  Officers,  and  rules  and  regulations  for. 

Sec.  1988.  In  the  election  of  officers,  the  ai?pointment  of  non-commissioned 
officers,  and  rules  of  government  and  discipline,  the  provisions  of  this  title  for 
the  government  and  discipline  of  the  other  arms  of  the  national  guard,  as  far 
as  applicable,  govern  battalions  of  light  artillery. 

1989.  Drills  of. 

Si;c.  1989.  The  provisions  in  this  title  contained  relating  to  battalion  drills 
do  not  ai)ply  to  light  aiiillei^;  but  the  commanding  officer  of  a  battalion  of 

2G2 


IVnLITIA.  1989-2006 

light  artillery  must  personally  drill  each  company  of  his  command  not  less  than 
three  times  in  each  year,  one  of  which  drills  must  he  with  harnessed  battery. 

1990.  Staff  of  colonel,  lieutenant-colonel,  and  major. 

Sec.  1990.  The  staff  of  a  colonel  of  a  regiment,  and  of  a  lieutenant-colonel  or 
a  major  commanding  a  battalion,  consists  of  one  adjutant,  one  quartermaster, 
one  commissary  and  paymaster,  and  one  assistant  surgeon,  each  with  the  rank 
of  first  lieutenant,  and  one  sergeant-major,  and  one  quartermaster-sergeant,  to 
be  appointed  by  such  commanding  officer,  and  holding  office  at  his  pleasure. 

1991.  Chaplains. 

Sec.  1991.  Commanders  of  regiments  and  battalions  may  appoint  chaplains. 
Sergeant  standard  bearers  and  general  guides  may  be  detailed  by  the  command- 
ing officer. 

1992.  Drum  corps. 

Sec.  1992.  Commanders  of  regiments  and  battalions  may  concentrate  the 
music  of  their  different  commands,  and  organize  the  same  under  a  di-um-major 
as  a  drum  corps.    . 

1993.  Bands. 

Sec.  1993.  "When  bands  of  music  have  not  been  organized  for  any  regiment 
or  battalion  in  the  manner  provided  in  the  regulations  of  the  arm}'  of  the  United 
States,  such  regiment  or  battalion,  through  its  commanding  officer,  may  hire 
the  services  of  any  baud  of  musicians  at  their  own  expense,  and  the  persons  so 
employed  are,  during  the  term  of  their  engagement,  subject  to  the  same  laws 
and  regulations  that  govern  the  military  with  which  they  may  sers'e. 

AETICLE  IV. 

DIVISION    AXD    BKIGADES. 

2003.  Number  of  brigades. 

Sec.  2003.  The  national  guard  of  this  state  is  organized  into  six  brigades, 
each  commanded  by  a  brigadier-general,  as  follows: 

Fi7^st  Brigade — San  Diego,  Los  Angeles,  San  Bernardino,  Santa  Barbara,  San 
Luis  Obispo,  and  Monterej^  counties. 

Second  Brigade — Santa  Cruz,  Santa  Clara,  San  Mateo,  San  Francisco,  Alameda, 
Contra  Costa,  Marin,  Sonoma,  Solano,  Napa,  and  Lake  counties. 

Third  Brigade — San  Joaquin,  Mariposa,  Tuolumne,  Fresno,  Stanislaus,  Cala- 
veras, Merced,  Mono,  Inyo,  Kern,  and  Tulare  counties. 

Fourth  Brigade — Sacramento,  Yolo,  Sutter,  El  Dorado,  Alpine,  Amador, 
Placer,  Nevada,  Yuba,  and  Sierra  counties. 

Fifth  Brigade — Butte,  Plumas,  Lassen,  Colusa,  Tehama,  Shasta,  Trinity,  and 
Siskiyou  counties. 

Sixth  Brigade — Mendocino,  Humboldt,  Del  Norte,  and  Klamath  counties. 

2004.  The  brigades  compose  one  division. 

Sec.  2004.  The  six  brigades  of  the  national  guard  compose  a  division,  com- 
manded by  a  major-general. 

2005.  New  counties,  how  attached. 

Sec.  2005.  New  counties  hereafter  organized  must  be  attached  to  the  respective 
brigade  in  which  the  larger  portion  of  such  new  county  is  now  located. 

2006.  Staff  of  major-general. 

Sec.  2006.  The  staff  of  the  major-general  consists  of  one  assistant  adjutant- 
general,  one  engineer  officer,  one  ordnance  officer,  one  quartermaster,  one  com- 
missary, one  paymaster,  one  dirision  inspector,  one  judge  advocate,  and  one 
surgeon,  with  the  rank  of  lieutenant-colonel,  two  aids-de-campj  with  the  rank 

263 


2006-2027  POLITICAL  CODE. 

of  major,  and  four  staff  orderlies,  with  the  rank  of  sergeant-major,  who   are 
appointed  by  and  hokl  office  at  the  pleasure  of  the  major-general. 

2007.  Siaff  of  brigadier-general. 

Sec.  2007.  The  staff  of  each  g^eneral  of  brigade  consists  of  one  assistant 
adjutant-general,  one  engineer  officer,  one  ordnance  officer,  one  quartermaster, 
one  commissary,  one  paymaster,  one  brigade  inspector,  one  judge  advocate,  and 
one  surgeon,  -n-ith  the  rank  of  major,  one  aid-de-camp,  Avith  the  rank  of  cap- 
tain, and  two  staff  orderlies,  with  the  rank  of  sergeant-major,  who  are  apx^ointed 
by  the  brigadier-general,  and  hold  office  at  his  pleasure. 

AKTICLE  V. 

PARADES  AND  DRILLS. 

2018.  Parades,  time  of. 

Sec.  2018.  The  national  guard  of  California  must  parade  at  least  three  times 
in  each  year : 

1.  On  the  fourth  day  of  July,  by  regiment  or  battalion,  if  practicable; 

2.  On  the  ninth  day  of  September,  by  battalion,  if  practicable; 

3.  In  the  month  of  May,  b}^  companies,  for  target  practice. 

2019.  Public  Inceptions  and  celebrations. 

Sec.  2019.  Upon  receptions,  or  upon  the  celebration  of  any  event  of  public 
importance,  the  commanding  officer  of  the  brigade  may  order  out  any  portion 
of  the  national  guard  under  his  command  to  join  in  such  parade. 

2020.  Companies  jMvading  ivith  less  than  thirty  members  may  be  disbanded. 

Sec.  2020.  Any  comj)any  parading  at  any  of  the  parades  or  drills  in  this 
article  provided  for  with  a  less  number  than  thirty-two,  rank  and  file,  must  be 
re^Dorted  to  the  adjutant-general,  and  by  him  notified  to  the  commander-in-chief, 
who  in  his  discretion  may  disband  the  same. 

2021.  Exemptions  from  arrest. 

Sec.  2021.  No  person  under  military  orders  for  parade,  drill,  or  other  mihtary 
service,  is  subject  to  aiTCst  on  civil  process  while  going  to,  or  returning  from, 
or  on  such  parade. 

2022.  Drills,  regimental  and  battalion,  thne  of. 

Sec  2022.  Commanders  of  regiments  and  battalions  must  assemble  their 
commands  for  battalion  drills  at  least  once  in  each  year,  exclusive  of  the  legal 
brigade,  regimental,  or  battalion  parade. 

2023.  Companies  failing  to  report  may  be  disbanded. 

Sec  2023.  Any  company  failing  to  report  for  duty  at  such  assemblage  must 
be  rei)orted  to  the  adjutant-general,  who  must  notify  the  same  to  the  com- 
mander-in-chief, who  may  in  his  discretion  disband  it. 

2024.  Cavalry  drills. 

Sec  2<J2-4.  Cavalry  must  drill,  mounted,  at  least  twice  in  each  year. 

2025.  Drill  of  regimeiU  not  concentrated. 

Sec  2025.  When  regiments  are  not  concentrated,  a  portion  of  the  companies 
may  be  assembled  for  battalion  drill. 

2026.  Company  drills,  time  of. 

Sec  2020.  Each  company  must  assemble  at  least  once  a  month  for  drill  or 
military  instruction. 

2027.  Company  drills  in  Sacramento  and  San  Francisco. 

Sec  2027.  The  companies  located  in  the  city  and  count}'  of  San  Francisco 
and  in  the  city  of  Sacramento,  must  assemble  once  a  week  for  drill. 

2G4 


MILITIA.  .         2028-2042 

2028.  Penalty  J  or  absence  from  compamj  drills. 

Sec.  2028.  All  o£Eicers  or  members  who  absent  themselves  from  three  con- 
secutive assemblages  without  an  excuse  accej^table  to  the  commanding  officer, 
are  debarred  from  the  privileges  and  exemptions  provided  for  members  of  the 
national  guard;  and  if  a  non-commissioned  officer  or  private  is  I'eported  to  the 
commanding  officer  of  the  regiment  or  battalion  as  having  so  absented  himself, 
he  may,  upon  the  recommendation  of  the  commanding  officer  of  the  company 
to  which  he  belongs,  be  expelled  the  service. 

2029.  Book  to  be  kept  showing  who  was  present  at  company  drill. 

Sec.  2029.  Commanders  of  companies  must  teep  a  book,  in  which  must  be 
entered  the  number  of  officers,  non-commissioned  officers,  and  privates,  re- 
spectively, present  at  each  drill,  and  must  therefrom  make  monthly  returns  to 
the  commanding  officer  of  the  regiment  or  battalion. 

2030.  Schools  for  instruction. 

Sec.  2030.  The  commanding  officer  of  any  brigade,  regiment  or  battalion  may 
require  the  officers  thereof  to  meet  for  military  instruction  at  such  times  and 
places  as  he  may  fix,  and  may  also  prescribe  the  mode  and  manner  of  instruc- 
tion, and  the  rules  and  regulations  to  govern  such  meetings. 


CHAPTER  III. 

CALLING   AND  DRAFTING  THE  MILITIA  INTO   ACTUAL  SERVICE. 

2039.  Militia,  when  and  by  whom  called  into  actual  service. 

Sec.  2039.  In  case  of  war,  insurrection  or  rebellion,  or  of  resistance  to  the 
execution  of  the  laws  of  this  state,  or  upon  the  call  or  requisition  of  the  presi- 
dent of  the  United  States,  or  upon  the  call  of  any  officer  of  the  United  States 
army  commanding  a  division,  department  or  district  in  California,  or  upon  the 
call  of  any  United  States  marshal  in  California,  or  of  the  chief  executive  officer 
of  any  city,  or  of  any  sheriff,  the  commander-in-chief  is  authorized  to  call  into 
active  service  any  portion  of  the  national  guard  or  enrolled  militia. 

2040.  Same. 

Sec  2040.  In  case  of  the  absence  of  the  commander-in-chief  from  the  capital, 
or  if  it  is  impossible  to  immediately  communicate  with  him,  the  civil  or  military 
officer  making  the  requisition  for  troops  may,  if  he  deem  the  danger  imminent 
and  not  admitting  of  delay,  serve  a  copy  of  such  requisition,  together  with  a 
statement  of  the  governor's  absence  or  the  impossibility  of  immediately  com- 
municating with  him,  upon  the  major-general,  or,  in  his  absence,  upon  the  gen- 
eral of  the  brigade,  who  is  authorized  to  exercise,  with  respect  to  calling  out 
the  troops  of  his  division  or  brigade,  the  powers  conferred  in  this  section  upon 
the  governor;  but  if  the  call  is  disap^D roved  by  the  governor,  the  troops  so  called 
into  service  must  be  immediately  disbanded. 

2041.  Call,  how  made. 

Sec.  2041.  Such  call  must  be  made  by  an  order  issued  and  directed  to  the 
commanding  officer  of  the  company,  battalion,  regiment,  brigade  or  division 
which  is  called  into  service,  designating  the  particular  troops  called,  the  time 
and  place  of  rendezvous,  and  the  officer  to  whom  they  must  report. 

2042.  Duty  of  officer  to  ivhom  order  directed. 

Sec,  2042.  If  such  order  is  directed  to  the  major-general  of  division,  it  must 
be  immediately  communicated  to  the  brigadier-generals,  and  by  them  to  all  the 
officers  of  their  respective  brigades. 

2G5 


2043-2051  POLITICAL  CODE. 

2043.  Same. 

Hhc.  2043.  Every  officer  receiving  such  order  must  rendezvous  and  report  for 
duty  as  herein  directed;  and  eveiy  officer  commanding  an  organized  company  or 
battalion  of  the  national  guard,  on  receiving  such  order,  must  immediately  pro- 
ceed to  notify  the  same  to  each  individual  of  his  command,  by  personal  notice 
or  by  publication  in  some  newspaper,  or  by  the  posting  in  pubHc  places  of  the 
county  or  counties  from  which  the  call  is  made. 

2044.  Same. 

Sec  2044.  Such  officer  must  attend  in  person,  or  by  deputing  an  officer  of  the 
organized  militia  in  his  j^lace,  at  the  place  of  rendezvous,  and  take  the  names  of 
all  volunteers  for  service  under  such  call. 

2045.  Organization  of  companies,  etc.,  and  election  of  officers. 

Skc.  2045.  If  the  number  of  such  volunteers  is  sufficient  to  form  one  or  more 
companies  or  battalions,  he  must  immediately  call  and  superintend  the  election 
of  the  officers  of  such  companies  or  battalions. 

2046.  Proclamation  for  election. 

Sec.  204G.  A  proclamation  of  the  call  of  such  election,  made  by  the  officer 
calling  it,  at  the  place  of  rendezvous,  is  a  sufficient  notice. 

2047.  Commander-in-chief   may  assign   volunteers    to  companies  or  battalions 

already  in  active  service. 
Sec  2047.  The  commander-in-chief  has  authority,  if  he  deem  it  expedient,  to 
direct  that  a  portion  of  the  volunteers  so  presenting  themselves  be  assigned  to 
comiDanies  or  battalions  already  in  active  service  whose  numbers  are  less  than 
the  full  complement. 

2048.  Organization  and  command  of  troops  from  different  brigades. 

Si;c.  2048.  "Where  troops  are  called  into  active  service  from  different  brigades, 
and  the  number  so  called  are  not  more  than  sufficient  to  constitute  one  complete 
brigade,  the  commander-in-chief  mv;st  so  organize  them,  and  must  designate  the 
particvdar  brigadier-general  to  command  it. 

2049.  When  draft  may  be  ordered. 

Sec.  2049.  If  the  number  of  volunteers  presenting  themselves  at  the  place  of 
rendezvous  is  insufficient  to  satisfy  the  call  of  the  commander-in-chief,  the 
brigadier-general  of  the  brigade  in  which  such  call  is  made  must  promptly  pro- 
ceed to  draft  from  the  enrolled  militia  of  his  brigade  a  sufficient  luimber  of  men 
to  satisfy  the  call,  and  this  draft  must  be  made  by  putting  the  names  of  all  the 
enrolled  militia  of  the  county  or  counties  from  which  the  order  directs  the  forces 
to  be  raised  into  a  box,  and  drawing  therefrom  a  sufficient  number  of  names  to 
satisfy  the  call. 

2050.  Wlin  iu  siipnrinfend  draft. 

Sec.  20r)0.  The  major-general  must  be  present  and  superintend  the  drafting 
of  the  enrolled  militia  under  any  call  by  the  commander-in-chief;  but  his  pres- 
ence is  ijot  necessary  to  give  validity  to  the  proceedings.  In  case  of  the  absence 
or  inability  of  the  brigadier-general,  the  officer  next  in  rank  of  the  brigade,  or, 
in  default  c^f  any  officer  of  tliat  l)rigade  for  duty,  the  major-general,  or,  in  his 
default,  the  commaudcr-iu-chief,  must  designate  some  other  officer  to  perform 
that  duty. 

2051.  Persons  drafted  to  rrndrzvous. 

Six'.  2051.  The  jjersons  drafted  must  be  summoned  by  some  officer  appointed 
for  that  i:)uiiiose  by  the  brigadier-general  in  the  manner  prescribed  by  law  for 
the  summoning  of  witnesses  in  civil  cases,  the  time  and  place  of  rendezvous,  as 
ordered  by  the  brigadier-general,  being  stated  iu  the  summons. 

266 


MILITIA.  2052-2CG1 

2052.  Elt'cHon  of  officers. 

Sec.  2052.  As  soon  as  a  suflScient  number  of  drafted  men  have  appeared  at 
the  rendezvous  to  form  a  company  or  companies  they  must  proceed  to  the  elec- 
tion of  their  company  officers. 

2053.  Refusing  to  rendezvous,  penalty  for. 

Sec,  2053.  Any  member  of  the  national  guard  who  neglects  or  refuses  to 
rendezvous  when  ordered  out  by  the  commander-in-chief,  is  giiilty  of  disobe- 
dience of  orders,  and  may  be  tried  and  punished  by  a  court-maiiial;  and  any 
member  of  the  enrolled  militia  who  refuses  or  neglects  to  rendezvous  when 
drafted,  is  subject  to  a  penalty  of  not  less  than  fifty  nor  more  than  three  hun- 
dred dollars,  to  be  recovered  by  an  action  brought  by  the  district  attorney,  in 
the  name  of  the  people  of  the  state,  upon  the  certificate  of  the  officer  ajopointed 
to  make  the  draft,  before  any  court  of  competent  jurisdiction  in  the  county 
from  which  such  person  was  drafted,  and  the  fine  recovered  must  be  paid  into 
the  state  treasury  to  the  credit  of  the  general  fund. 

2054.  Companies,  how  attached. 

Sec.  2054,  Any  company  of  the  enrolled  militia  drafted  and  organized,  may, 
by  direction  of  the  commander-in-chief,  be  enrolled  and  mustered  into  any  bat- 
talion of  the  national  guard  having  less  than  eight  companies. 

2055.  Drafted  men  may  he  enrolled  in  existing  companies. 

Sec.  2055.  Drafted  men  of  the  enrolled  militia  not  organized  into  companies, 
may,  at  the  discretion  of  the  commander-in-chief,  be  enrolled  and  mustered  into 
any  existing  company  of  the  national  guard  or  enrolled  militia  not  having  the  full 
mxmber  authorized  by  law  and  which  has  already  been  called  into  active  service. 

2056.  Substitutes. 

Sec,  2056,  Any  person  called  or  drafted  into  service  may  furnish  as  a  substi- 
tute any  person  fit  for  mihtary  duty  who  has  not  been  called  or  di'afted  into 
service. 

2057.  Same. 

Sec.  2057.  When  any  j^erson  drafted  for  service  offers,  at  or  after  the  time  of 
rendezvous,  a  suitable  substitute,  and  such  substitute  consents  in  writing  to 
subject  himself  to  all  the  duties,  fines,  forfeitures,  and  punishments  to  which 
his  principal  would  have  been  subject  had  he  personally  served,  he  must  be 
accejDted  by  the  officer  making  such  draft. 

2058.  Same. 

Sec.  2058.  The  person  whose  substitute  is  so  accepted  is  not  subject  to  draft 
during  the  term  of  service  of  the  substitute. 

2059.  Rules  governing  conduct  of  troops  when  called  out  to  suppress  insurrec- 

tion, etc. 
Sec.  2059.  The  conduct  of  trooj^s  when  called  out  to  suppress  an  insurrection 
or  rebellion,  to  disperse  a  mob  or  enforce  the  laws,  is  provided  for  in  section  731 
of  The  Penal  Code. 

2060.  Duration  of  commissions  of  officers  called  into  actual  service. 

Sec.  2060.  The  commission  of  any  officer  called  into  active  service  continues 
until  he  is  discharged  by  the  order  of  the  commander-in-chief. 

2061.  Vacancies  occurring  in  actual  service,  how  filled. 

Sec.  2061,  All  vacancies  of  officers  and  non-commissioned  officers  in  active 
sen^ice  must  be  filled  by  appointment  or  promotion;  the  first  by  the  commander- 
in-chief,  and  the  second  by  the  commanding  officer  of  the  battalion  or  of  the 
company,  in  case  such  company  forms  no  part  of  any  battalion. 

267 


20C2-2077  POLITICAL  CODE. 

2062.  Same. 

Sic.  2002.  In  filling  vacancies  of  commissioned  officers  the  commander-in- 
cLief  must,  as  a  general  rule,  promote  by  seniority,  or  appoint  on  the  recom- 
meudatiou  of  their  superior  officers  those  in  active  service,  and  in  any  case  of 
departure  from  this  rule  the  commander-in-chief  must  report  his  reasons  for 
such  departui-e  to  the  senate. 

2063.  Same,  for  personal  bravery  in  battle,  etc. 

Skc.  20G3.  The  commamliug  officer  of  troops  in  active  service  may  nominate 
to  any  vacancy  for  personal  bravery  or  service  in  siege  or  battle,  and  if  the  gov- 
ernor commission  some  other  person  than  the  one  so  nominated,  he  must  rej)ort 
his  reasons  to  the  senate;  and  if  the  senate  in  either  of  the  foregoing  cases  dis- 
approve of  the  reasons  given,  the  commission  so  given  is  vacated,  and  the 
governor  must  immediately-  j^^'oceed,  with  the  advice  and  consent  of  the  senate, 
to  fill  .such  vacancy. 

2064.  Hides  to  govern  militia  when  in  actual  service. 

Si;c.  20G4:.  The  rules  and  regulations  established  by  congTCss  for  the  govern- 
ment of  the  army  of  the  United  States  are  applicable  to  and  govern  the  militia 
of  this  state  when  in  active  service. 

2065.  Pay  of  officers  and  privates  when  in  actual  service. 

Sec  2065.  Officers  and  privates  while  on  active  duty  in  the  ser\dce  of  the 
state  receive  the  same  pay  as  the  officers  and  privates  of  the  United  States  anny 
of  similar  grade  serving  on  the  Pacific  coast;  the  same  to  be  audited  b}^  the 
board  of  military  auditors,  upon  the  pay-roll  properly  made  up  and  signed  by 
such  officer. 

2066.  Pay  of  officers  when  detailed  on  special  duty. 

Sec.  2066.  When  an  officer  is  detailed  for  special  duty  in  any  matter  relating 
to  the  national  guard,  or  care  of  state  militaiy  property,  by  order  of  the  com- 
mander-in-chief, he  must  be  allowed  jiay  proper,  and  such  reasonable  traveling 
expenses  as  the  board  of  military  auditors  may  allow,  upon  sworn  vouchers 
showing  actual  expenditures. 

CHAPTER  IV. 

COURTS,   MARTIAL  AND   OF   INQUIRY, 

2076.  Who  may  appoint  courts-martial. 

Slc.  2U76.  The  following  officers  may  appoint  courts-martial: 

1.  The  commander-in-chief,  for  the  trial  of  general  officers  and  all  officers  of 
the  staff  of  the  commandor-in-chief; 

2.  The  major-general,  for  the  trial  of  all  staff  officers  of  the  division  and 
brigades,  and  for  the  field  and  staff  officers  of  battalions  and  regiments; 

3.  Brigadier-generals,  for  the  trial  of  all  captains  and  commissioned  officers 
under  their  rank  in  their  respective  brigades; 

4.  Commanding  officers  of  regiments  and  battalions,  for  the  trial  of  officers 
and  privates  of  their  respective  commands; 

5.  Commanding  officers  of  batteries  or  of  unattached  companies,  for  the 
trial  of  officers  and  privates  of  their  respective  commands. 

2077.  Organization  and  rules. 

Sec.  2077.  Courts-njartiul  appointed  under  the  provisions  of  this  chapter  are 
organized  in  like  manner  and  subject  to  the  rules  and  regulations  governing 
courts-martial  in  the  United  States  army.  They  have  the  same  power  to 
compel  the  attendance  of  witnesses  when  summoned  by  the  judge  advocate,  to 

208 


MILITIA.  2077-2084 

preserve  order  in  and  about  tlie  court-room  during  the  sessions,  and  to  punish 
contempt,  as  the  judges  of  the  district  courts  have  under  the  laws  of  this 
state. 

2078.  Poivers. 

Sec.  2078.  Courts-martial  have  power  on  conviction  to  j)unish  by  depriving 
officers  of  rank  by  expulsion  or  dismissal,  or  by  such  other  and  usual  militarj' 
fines  and  penalties  as  is  customaiy  with  courts-martial  in  the  army  of  the 
United  States. 

2079.  Revision  and  approval  of  sentence. 

Sec.  2079.  The  officer  appointing  a  court-martial  must  revise  the  proceedings 
and  approve  or  disapprove  the  sentence  of  such  court-martial,  and  must  direct  the 
execution  of  such  sentence,  or  mitigate  the  punishment,  or  may  remit  the 
sentence  of  the  person  convicted;  but  the  person  so  sentenced  may  apply  to  the 
commander-in-chief  to  revise  the  proceedings  and  to  disapprove  them  or  pardon 
the  offense,  in  which  case  the  officer  approving  the  sentence  will  transmit  the 
proceedings  in  the  case  to  the  commander-in-chief,  and  the  execution  of  the 
sentence  must  be  suspended  until  the  proceedings  are  returned  with  the 
decision  thereon. 

2080.  Fines,  how  collected. 

Sec.  2080,  For  the  purpose  of  collecting  fines  or  penalties  imposed  by  courts- 
martial,  the  president  of  any  such  court  must  make  a  list  of  all  such  fines  and 
penalties,  and  of  the  persons  against  whom  they  have  been  imposed,  and  must, 
within  fifteen  days  after  the  fines  and  penalties  have  been  imposed,  issue  a 
warrant  under  his  hand,  directed  to  any  sheriff  or  constable  of  the  county, 
commanding  him  to  levy  and  collect  such  fines,  together  with  costs,  upon  and 
out  of  any  property  of  the  person  against  whom  the  fine  or  penalty  was  imposed, 
and  such  warrant  may  be  executed  and  renewed  in  the  same  manner  as  execu- 
tions issued  from  justices'  courts  are  executed  and  renewed.  All  jDroperty, 
excej)t  the  homestead,  is  subject  to  execution  and  forced  sale  under  such 
warrant. 

2081.  No  action  in  certain  cases  against  members  of  courts-martial. 

Sec.  2081.  No  action  can  be  maintained  against  any  member  of  a  court-mar- 
tial, or  officer  or  agent  acting  under  his  authority,  on  account  of  an  imposition 
of  a  fine  or  the  execution  of  a  sentence,  on  a  person  not  liable  to  military  duty, 
if  such  person  has  been  summoned  and  notified  in  writing  of  the  charges  pre- 
ferred against  him,  and  has  failed  to  appear  and  show  his  exemption  before  the 
court. 

2082.  Wlio  may  order  courts  of  inquiry. 

Sec.  2082.  Courts  of  inquiry  may  be  ordered  by  the  commander-in-chief,  by 
the  major-general,  or  by  any  brigadier-general. 

2083.  Rules  governing. 

Sec.  2083.  Courts  of  inquiry  are  governed  by  the  same  rules  as  similar  courts 
in  the  army  of  the  United  States. 

2084.  Sheriffs  and  constables  must  serve  subpoenas,  etc. 

Sec.  2084.  Eveiy  sheriff  and  constable  must  serve  all  orders,  subpoenas  or 
process  delivered  to  him  for  that  purpose  by  any  member  of  a  court-martial. 


269 


2093-2099  POLITICAL  CODE. 

CHAPTEK  y. 

THE   BOARD   OF   MILITARY   AUDITORS. 

2093.  VDio  constitute  board. 

Sec.  2093.  The  commauaer-iu-cliief,  adjutant-general  and  tlie  attorney-gen- 
eral constitute  a  board  of  military  auditors.  The  comniander-in-cliief  is  presi- 
dent, and  the  adjutant-general  secretary;  and  the  board  must  have  a  seal,  which 
must  be  attached  to  all  accounts  audited  by  them. 

2094.  Allowance  and  payment  of  company  exj?enseK. 

Sec.  209-4.  Tiiere  must  be  audited  and  allowed  by  the  board  of  military  audi- 
tors, and  paid  out  of  the  general  fund,  upon  the  warrant  of  the  state  controller, 
to  the  commanding  officer  of  each  company  of  cavaliy  or  infantry  of  the  national 
guard,  for  armory  rent  and  incidental  expenses  of  an  armory,  care  and  cleaning 
of  arms  and  military  property  in  charge  of  such  company,  the  sum  of  fifty  dollars 
per  month;  to  the  commanding  officer  of  each  light  battery,  the  sum  of  twenty-five 
dollars  per  month  for  each  gun  under  their  command;  and  to  the  commanding 
officer  of  each  regiment  or  battalion  for  incidental  expenses,  the  sum  of  three 
dollars  i^er  month  for  each  company  under  their  command;  to  each  brigadier- 
general  the  sum  of  three  dollars  jDer  month  for  each  company  in  his  brigade. 
[Amendment,  approved  March  30,  1876;  Amendments  1875-6,  30;  took  effect  from 
and  after  July  1,  1876.^''* 

2095.  Same. 

Sec  2095.  No  claim  must  be  allowed  under  the  provisions  of  the  preceding 
section  unless  an  itemized  account  of  the  expenditures  is  made  out,  signed,  and 
sworn  to  in  duplicate  by  the  officer  claiming  the  same,  and  transmitted  through 
the  proper  military  channel  to  the  adjutant-general  of  the  state — one  copy  to 
be  filed  in  the  office  of  the  adjutant-general,  and  one  to  be  sent  to  the  board  of 
militaiy  auditors. 

2096.  Other  duties  of  the  hoard. 

Sec.  2096.  The  board  of  military  auditors  must  audit  and  allow  all  proper 
claims  against  the  military  fund  incurred  by  troops  in  the  service  of  this  state, 
and  officers  attached  to  the  same. 

2097.  Duties  of  controller  and  treasurer. 

Sec.  2097.  The  controller  of  state  must  draw  his  w\arrants  for  any  amount 
audited  and  allowed  by  the  board,  and  the  treasurer  of  state  must  pay  the  same 
out  of  the  military  fund. 

2098.  Claims  exempted  from  hoard  of  examiners. 

Sec.  2098.  Claims  audited  and  allowed  by  the  board  of  militarj'  auditors  are 
exempt  from  the  provisions  of  Article  XVIII  of  Chapter  III,  Part  III  of  this 
Code.     [See  ante,  654.] 

2099.  Allowances  to  companies. 

Sec  2099.  The  annuid  sum  of  one  hundred  and  fifty  dollars  must  be  audited 
by  the  board  and  paid  out  of  the  general  fund  to  each  company  of  the  national 
guard  of  over  sixty  members,  and  an  amount  in  joroportion  to  every  company  of 
less  than  sixty  meml)ers.  The  amounts  so  audited  and  allowed  must  be  paid  to 
the  commanding  officers  of  such  companies  for  the  use  thereof.  A  quarterly 
statement  of  the  manner  in  which  such  sums  have  been  expended  must  be  made 

(a)  The  original  section  Instoad  of-"  general  fund"  three  dollars  for  each  company  per  month;  and  to  the 
had  the  wordr*  "nillltarj-  fund;"  Innti-nd  of  the  first  coniiriandlug  officer  of  eueh  battalion  the  sum  of  not 
"fifty"  the  wordu  "not  iimri-  t)ian  one  hundrerl  ;"  more  tliau  tliree  dollars  per  mouth  for  each  company 
before  the  second  "  fifty  "  tlie  worilH  "  not  uiore  than;"  In  his  biittalion."  It  had  the  words  "of  briitade" 
li  st<-ad  of  "  three  dollars  per  mouth  for  each  company  after  "  brlKadier-general,"  but  not  the  words  "  or  bat- 
under  their  command"  the  words  "not  more  than  taliou"  after  "regiment." 

270 


MILITIA.  2099-2111 

by  sucli  officers  to  the  adjutant-general.    [Amendment,  approved  March  30, 1876; 
Amendments  1875-6,  30;  took  effect  from  and  after  July  1,  1876/"' 

An  Act  making  appropriations  for  deficiencies  in  the  payment  of  armory  rents  and  otlier  ex- 
penses of  the  national  guard  of  California,  as  provided  by  law,  for  the  tweuty-liftb,  twenty- 
sixth,  and  twenty-seventh  fiscal  years,  ending  June  thirtieth,  eighteen  hundred  and  seventy-six. 

Approved  March  30,  187C;  1875-G,  575. 

[This  act  appropriated  $17,905  for  deficiency  for  armory  rents,  annual  allow- 
ances and  other  expenses,  for  the  year  ending  June  30,  1874;  and  $59,928  for 
armory  rents,  annual  allowances  and  other  expenses  for  the  two  years  ending 
June  30,  1876.] 

CHAPTEE  VI. 

ADJUTANT-GENERAL. 

2107.  General  duties  of  adjutant-general. 

Sec.  2107.  It  is  the  duty  of  the  adjutant-general: 

1.  To  keep  and  preserve  the  arms,  accoutrements,  ammunition,  and  other 
military  property  belonging  to  the  state; 

2.  To  keep  on  file  in  his  office  all  returns  and  reports  made  to  him; 

3.  To  keep  an  account,  in  a  manner  directed  by  the  commander-in-chief,  of 
all  moneys  received  or  disbursed  by  him; 

4.  To  prepare  and  keep  all  blank  forms  required  for  the  service; 

5.  To  attest  all  commissions  issued  to  military  officers; 

6.  To  authenticate,  with  his  official  seal,  all  papers  issued  from  his  office; 

7.  To  make  out  and  transmit  the  annual  militia  returns  prescribed  by  the  act 
of  congress  of  March  second,  eighteen  hundred  and  three. 

8.  To  perform  such  other  duties  as  are  required  by  the  provisions  of  this  title. 
[Amendment,  approved  January  20,  1876;  Amendments  1875-6,  31;  took  e^ect 

from  passage}^^ 

2108.  Report. 

Sec  2108.  He  must  report  to  the  governor  a  statement: 

1.  Of  all  monej^s  received  or  disbursed  by  him  since  his  preceding  report; 

2.  An  account  of  all  arms,  accoutrements,  ammunition,  and  military  property 
belonging  to  the  state,  from  what  source  received,  and  to  whom  issued; 

3.  Of  the  present  condition  of  all  such  property  under  his  charge; 

4.  The  number  and  condition  of  the  national  guard  and  of  the  enrolled 
militia  of  the  state. 

2109.  To  act  as  chief  of  staff. 

Sec.  2109.  He  is  ex  officio  chief  of  staff,  quartermaster-general,  commissary- 
general,  inspector-general,  and  chief  of  ordnance. 

2110.  Staff. 

Sec  2110.  His  staff  consists  of  one  assistant  adjutant-general,  with  the  rank 
of  major,  one  aid-de-camp,  with  the  rank  of  captain,  and  one  orderly,  with  the 
rank  of  sergeant-major,  appointed  by  him  and  holding  office  at  his  pleasure. 

2111.  Transportation  of  arms. 

Sec  2111.  The  transportation  of  arms,  equij^ments,  and  military  stores  issued 
to  troops  or  received  by  the  state,  and  all  other  military  transportation,  must 
be  contracted  for  by  the  adjutant-general,  under  the  direction  of  the  com- 
mander-in-chief, and  vouchers  for  such  transportation,  when  audited  by  the 

(a)   The  original  section,  instead  of  "  annual  sitm  of  taclimeut  of  engineers,"  and  after  the  -words  "  euch 

one  hundred  and  fifty  dollars  must"  had  the  words  companies  "  the  words  "  or  detachments." 

"sum  of  three  hundred  dollars  must  annually;"  instead  (f*)   The  original  section  had  nine  subdivisions,  the 

of  "general  fund"  the  words  "military  fund."    At  the  above  eighth  being  ninth,  and  the  original  eighth  as 

end  of  the  first  sentence  it  had  the  additional  clause,  follows:  "  8.  To  appoint  an  armorer  and  prescribe  and 

"and  also  the  sum  of  one  hundred  dollars  to  each  de-  enforce  his  duties." 

271 


2111-2136  POLITICAL  CODE. 

state  board  of  military  auditors,  must  be  paid  from  the  military  fund,  on  the 
warrant  of  the  controller. 

2112.  [Seo.  2112  >"  was  repealed  by  act  of  January  20,  1876;    Amendments 
1875-6,  31;- took  effect  from  jjassage.] 

2113.  Salai-y  of  adjutant-general. 

Sec.  2113.  The  annual  salaiy  of  the  adjutant-general  is  three  thousand 
dollars. 

2114.  Salary  of  assistant  adjutant-general. 

Sec.  2114.  The  annual  salary  of  the  assistant  adjutant-general  is  two  thou- 
sand dollars. 

2115.  Salaries,  xohen  and  out  of  what  fund  payable. 

Sec.  2115.  The  salaries  provided  for  in  this  chapter  are  payable  monthly  out 
of  the  general  fund  in  the  state  treasury. 

2116.  Official  bond. 

Sec  2116.  The  adjutant-general  must  execute  an  official  bond  in  the  sum  of 
twenty-five  thousand  dollars. 

2117.  Title  in  force,  etc. 

Sec.  2117.  The  provisions  of  this  title  shall  be  in  force  and  effect  from  and 
after  the  first  day  of  May,  eighteen  hundred  and  seventy-two,  and  the  chairman 
of  the  revision  commission  is  hereby  directed  to  have  prepared  and  printed  in 
pamphlet  form,  for  the  use  of  the  adjutant-general,  twelve  hundred  copies  of 
the  provisions  of  the  codes  relating  to  the  militia,  the  cost  of  making  the  copy 
for  the  printer  to  be  audited  and  allowed  by  the  board  of  examiners,  and  paid 
out  of  the  military'  fund  in  the  state  treasury. 


TITLE  y. 

Chapter  I.  Insane  Asylum 2136 

II.  Deaf,  Doib,  and  Blind  Asyliim 2237 

III.  State  Library 2292 

IV.  Supreme  Court  Library 2313 

V.  Other  Public  Institutions 2326 

CHAPTER  I. 

INSANE    ASYLUMS. 
Akticlb  I.  Board  of  Dieectoes 2136 

II.    MkMCAL   BrPKllINTKNDKNT 2150 

III.  Assistant  Physicians 2165 

IV,  TllKASCKKR 2179 

V.  Gknkbai.  PkovisioNs 2193 

VI.  Examination  and  Committal  of  Insane  Persons 2210 

ARTICLE  I. 

the  nOAUD  OF  DIRECTORS  OF  THE  INSANE  ASYLUM. 

2186.    Under  control  nfJxiard  if  directors. 

Sec.  2136.  The  insane  asylum,  located  at  Stockton,  is  under  the  management 

(a)  Repealed  section: 

Sec.  2112.  The  annual  salary  of  the  armorer  1b  elgLtorn  hundred  dollars. 

272 


PUBLIC  INSTITUTIONS.  2136-2151 

and  control  of  a  board  of  directors,  consisting  of  five  persons  appointed  and 
holding  their  oflSces  as  provided  in  Title  I,  Part  III  of  this  Code.  [See  ante, 
368,  369.] 

2137.  Powers  and  duties  of  hoard. 

Sec.  2137.  The  powers  and  duties  of  the  board  of  directors  of  the  insane 
asylum  are  as  follows : 

1.  To  make  by-laws,  not  inconsistent  with  the  laws  of  this  state,  for  their 
own  government  and  the  government  of  the  asylum; 

2.  To  hold  stated  meetings  at  the  asylum  for  the  transaction  of  business  on 
the  first  Monday  in  each  month; 

3.  To  keep  a  record  of  their  proceedings,  open  at  all  times  to  the  inspection 
of  any  citizen; 

4.  To  elect  a  medical  superintendent,  two  assistant  physicians  and  a 
treasiu'er. 

5.  To  provide  on  the  asylum  grounds  suitable  apartments,  furniture,  pro- 
visions, and  lights  for  the  medical  superintendent,  assistant  physicians,  and 
their  families; 

6.  To  make  diligent  inquiry  into  the  departments  of  labor  and  expense,  the 
condition  of  the  asylum  and  its  property; 

7.  To  report  to  the  governor  a  statement  of  the  receipts  and  expenditures, 
the  condition  of  the  asylum,  the  number  of  patients  under  treatment,  and  of 
such  other  matters  touching  the  duties  of  the  board  as  is  advisable. 

2138.  Moneys  for  support  of  asylum,  how  draivn. 

Sec.  2138.  If  the  board  approve  the  estimates  made  under  the  provisions  of 
section  2153,  it  must  notify  the  controller  of  state,  who  must  draw  his  warrant 
for  the  amount  estimated  in  three  equal  sums  out  of  any  moneys  in  the  state 
treasury  appropriated  for  the  use  of  the  asylum. 

2139.  Board  7nust  contract  for  supplies. 

Sec.  2139,  Upon  the  receipt  of  each  report  provided  for  in  subdivision  5  of 
Bection  2152,  the  board  of  directors  must  advertise  for  contracts  for  furnishing 
the  supplies  therein  specified,  for  three  successive  weeks,  in  one  newspaper  in 
each  of  the  cities  of  Stockton,  Sacramento,  and  San  Francisco.  The  contract 
must  be  awarded  to  the  lowest  bidder,  upon  his  giving  satisfactory  security  for 
the  faithful  performance  of  the  same. 

2140.  Compensation  of  directors. 

Sec  2140.  The  compensation  of  the  directors  is  ten  dollars  each  for  every 
day  spent  in  attending  or  traveling  to  the  meetings  of  the  board;  not,  however, 
to  exceed  one  hundred  and  thirty  dollars  annually  to  each  member. 

ARTICLE   II, 

MEDICAL    SUPERINTENDENT. 

2150.  Qualifications  of. 

Sec  2150.  The  medical  superintendent  must  be  a  graduate  in  medicine,  and 
must  have  practiced  his  profession  five  years  after  the  date  of  his  diploma. 

2151.  Term  of  office. 

Sec  2151.  His  term  of  ofiice  is  four  years  from  and  after  his  election. 

2152.  General  powers  and  duties. 

Sec  2152.  He  is  the  chief  executive  ofiicer  of  the  asylum,  with  powers  and 
duties  as  follows : 

1.  To  control  the  patients,  prescribe  the  treatment,  and  prescribe  and  enforce 
the  sanitary  regulations  of  the  asylum; 
18  273 


2152-21G8  POLITICAL  CODE. 

2.  A\'ith  the  consent  of  the  board  of  directors,  to  fix  the  number  and  com- 
pensation of,  and  ai^poiut,  control,  and  remove  the  attendants  and  assistants; 

3.  To  prescribe  and  enforce  the  performance  of  the  duties  of  the  attendants 
and  assistants; 

4.  To  prescribe  and  enforce  the  performance  of  the  duties  of  the  assistant 
jihysicians; 

5.  To  ascertain  and  report  to  the  board  of  directors  the  amount,  character, 
and  quahty  of  provisions,  fuel,  and  clothing  requii'ed  for  the  six  months  ending 
on  the  lir.st  of  ]\Iay  and  November  in  each  year; 

G.  "With  the  consent  of  the  board  of  directors  to  make  an}'  expenditure  neces- 
sary in  the  performance  of  his  duties,  except  for  provisions,  fuel,  and  clothing; 

7.  To  receive  and  pay  to  the  treasurer  all  moneys  found  upon  insane  persons; 

8.  To  keep  a  daily  record  of  his  official  acts  in  the  mode  prescribed  by  the 
by-laws; 

9.  To  make  up  his  annual  accounts  to  the  first  of  July  in  each  year,  and  as 
soon  thereafter  as  j)ossible  to  report  a  statement  thereof,  and  of  the  general 
condition  of  the  asylum,  to  the  board  of  directors. 

2153.  Jlust  estimate  expenses  and  report  to  directors. 

Sec.  2153.  He  must  estimate,  quarterly,  in  advance,  the  probable  expenses 
of  the  asylum,  and  submit  such  estimate  to  the  directors,  at  their  stated  meet- 
ings, for  their  consideration  and  approval. 

2154.  Salary. 

Sec.  215-4.  The  annual  salary  of  the  medical  superintendent  is  thirty-five 
hundred  dollars. 

2155.  Bond. 

Sec.  2155.  He  must  execute  an  official  bond  in  the  sum  of  twenty  thousand 
dollars. 

Au  Act  in  relation  to  the  superintendent  of  tlie  state  insane  asylitm. 
Approved  April  1,  1872;  1871-2,  845. 

Attendance  on  annual  meetings  of  superintendents  oj"  American  institutions. 

Section  1.  The  superintendent  of  the  state  insane  asylum  may  attend  the 
annual  meetings  of  the  superintendents  of  American  institutions  for  the  insane, 
and  his  expenses,  not  to  exceed  four  hundred  dollars  per  annum,  must  be 
audited  and  allowed  by  the  board  of  examiners,  and  paid  out  of  the  state 
treasury. 

Sec.  2.  This  act  shall  be  in  force  from  and  after  its  passage. 

ARTICLE  III. 

ASSISTANT    PHYSICIANS. 

2165.  Qualifications. 

Sec.  21G5.  The  assistant  physicians  must  be  graduates  in  medicine. 

2166.  Term  of  ofice. 

Sec.  21GG.  Their  tenu  of  office  is  four  years  from  and  after  their  appointment. 

2167.  (leneral  dalica. 

Sec.  21G7.  They  must  ijorform  the  duties  and  exercise  the  powers  prescribed 
by  the  medical  superintendent  or  the  by-laws. 

2168.  Si'idor  assistant,  when  to  act  as  medical  superintendent. 

Sec.  21G8.  During  the  absence  or  disability  of  the  medical  superintendent 
the  assistant  longest  in  commission  must  perform  his  duties  and  exercise  his 
powers. 

274 


PUBLIC  INSTITUTIONS.  2169-2198 

2169.  Salaries. 

Sec.  2169.  The  annual  salary  of  each  assistant  physician  is  twenty-five  hun- 
dred dollars. 

AETICLE  IV. 

TREASURER. 

2179.  number  of  board  not  eligible. 

Sec.  2179.  No  member  of  the  board  of  directors  is  eligible  to  the  office  of 
treasurer. 

2180.  Tenure  of  office. 

Sec.  2180.  The  treasurer  holds  his  office  at  the  pleasure  of  the  board  of 
directors. 

2181.  General  duties  of. 

Sec.  2181.  It  is  the  duty  of  the  treasurer: 

1.  To  act  as  secretary  of  the  board  of  directors; 

2.  To  keep  the  accounts  of  the  board  and  of  the  receij)ts  and  expenditures; 

3.  To  report  on  the  first  Monday  in  each  month  to  the  state  board  of  exam- 
iners a  statement  under  oath  of  the  expenses  of  the  jDreceding  month; 

4.  To  perform  such  other  duties  as  may  be  required  of  him  by  the  by-laws  or 
board  of  directors. 

2182.  Salary. 

Sec.  2182.  The  annual  salary  of  the  treasurer  is  six  hundred  dollars. 

2183.  Bond. 

Sec.  2183.  He  must  execute  an  official  bond  in  the  sum  of  twenty  thousand 
dollars. 

AETICLE  V. 

general  provisions. 

2193.  Salaries,  when  and  out  of  what  fund  payable. 

Sec.  2193.  The  salaries  and  compensation  fixed  by  the  pro\'isions  of  this  chap- 
ter must  be  paid  monthly  out  of  the  moneys  appropriated  for  the  support  of  the 
asylum. 

2194.  Approval  and  filing  of  official  bonds. 

^c.  2194.  The  official  bonds  required  by  the  provisions  of  this  chapter  must 
be  aiDproved  by  the  board  of  directors,  and  filed  and  recorded  in  the  office  of 
the  secretary  of  state. 

2195.  Restrictions  upon  residence  of  physicians. 

Sec  2195.  The  medical  superintendent  and  each  assistant  physician  must 
reside  on  the  asylum  grounds. 

2196.  Restrictions  upon  business  of  physicians. 

Sec.  2196.  The  officers  mentioned  in  the  preceding  section  must  not  engage 
in  the  private  practice  of  medicine,  but  must  devote  their  whole  time  to  the  j^er- 
formance  of  their  duties,  unless  granted  leave  of  absence  by  the  board  of 
directors. 

2197.  Discharge  of  patients  on  recovery. 

Sec  2197.  Insane  persons  received  in  the  asylum  must  upon  recovery  be  dis- 
charged therefrom. 

2198.  Insane  convicts;  reception  and  return  of. 

Sec  2198.  Insane  convicts  must  be  received  into  the  insane  asylum,  and 
returned  to  the  state  prison  again,  as  provided  in  section  1230  of  The  Penal 
Code. 

275 


2199-2217  POLITICAL  CODE, 

2199.  Restrictions  upon  admission  of  non-residents. 

Szc.  2199.  No  insaue  person,  nou-resident  of  this  state,  must  be  received  into 
the  asylum  unless  lie  becaiue  insane  within  this  state. 

2200.  Disposition  of  moneys  unexpended  at  discharge  or  death  of  patient. 

Sec.  2200.  If  at  the  time  of  the  discharge  of  a  person  from  the  asylum,  or 
after  the  death  and  burial  of  any  person  tlierein  contined,  there  remains  in  the 
custody  of  the  directors  or  treasurer  any  moneys  paid  for  the  support  or  main- 
tenance of  such  person,  it  must,  upon  demand,  be  I'epaid. 

AETICLE  YL 

EXA:^nNATION    AND    COMMrrTAL    OF    INSANE    PERSONS. 

2210.  Examination,  before  ivhom. 

Sec.  2210.  Whenever  it  appears  by  affidavit  to  the  satisfaction  of  a  magistrate 
of  the  county  that  any  person  within  the  county  is  so  far  disordered  in  his  mind 
as  to  endanger  health,  person  or  property,  he  miist  issue  and  deliver  to  some 
peace  officer  for  service  a  warrant,  directing  that  such  person  be  arrested  and 
taken  before  any  judge  of  a  court  of  record  within  the  county  for  examination. 

2211.  Two  icifnesses. 

Sec  2211.  "When  the  person  is  taken  before  the  judge  he  must  issue  sub- 
pcBnas  to  two  or  more  witnesses,  best  acquainted  with  such  insane  person,  to 
apjjear  and  testify  before  him  at  such  examination. 

2212.  Two  physicians. 

Sec.  2212.  The  judge  must  also  issue  subpoenas  for  at  least  two  graduates  of 
medicine  to  appear  and  attend  such  examination. 

2213.  Witnesses,  duty  of. 

Sec  2213.  At  the  examination  the  person  subpoenaed  must  appearand  answer 
all  questions  pertinent  to  the  matter  under  investigation. 

2214.  Physicians,  duty  of. 

Sec  2214.  The  physicians  must  hear  such  testimony,  and  must  make  a  per- 
sonal examination  of  the  alleged  insane  person. 

2215.  Certificate  of  physicians. 

Sec  2215.  The  physicians,  after  hearing  the  testimony  and  making  the  exam- 
ination, must,  if  they  believe  such  person  to  be  dangerously  insane,  make  a 
certificate,  under  their  hand,  showing  as  near  as  possible: 

1.  That  such  person  is  so  far  disordered  in  his  mind  as  to  endanger  health, 
pcr.son,  or  property; 

2.  The  premonitory  symptoms,  apparent  cause  or  class  of  insanity,  the  dura- 
tion and  condition  of  the  disease; 

3.  The  nativity,  age,  residence,  occupation,  and  previous  habits  of  tlie])erson; 

4.  The  place  from  whence  the  person  came,  and  the  length  of  his  residence 
in  this  state. 

2216.  To  Ije  made  on  forms,  etc. 

Sec,  221G.  The  ccvlilicute  must  be  made  in  the  form  prescribed  by,  and,  if 
they  can  l^e  had,  upon  bhuiks  furnished  by  the  medical  superintendent  of  the 
asylum. 

2217.  Action  ofjudye — Commitment. 

Sec  2217,  The  judge,  after  such  examination  and  certificate  made,  if  he  be- 
lieves the  person  so  far  disordered  in  his  mind  as  to  endanger  health,  person,  or 
property,  must  make  an  order  that  he  be  confined  in  the  insane  asylum. 

276 


PUBLIC  INSTITUTIONS.  2218-2222 

2218.  Sheriff  to  deliver  insane  person,  commitment,  etc.,  at  asylum. 

Seo.  2218.  The  insane  person,  together  with  the  order  of  the  judge  and  cer- 
tificate of  the  physicians,  must  be  delivered  to  the  sheriff  of  the  county,  and  by 
him  must  be  delivered  to  the  officer  in  charge  of  the  insane  asylum. 

2219.  Money  found  on  insane  person  to  be  delivered  at  asylum. 

Sec.  2219.  Any  monej^s  found  on  the  jierson  of  an  insane  person  at  the  time 
of  arrest  must  be  certified  to  by  the  judge  and  sent  with  such  person  to  the 
asylum,  there  to  be  delivered  to  the  medical  superintendent,  who  must  deliver 
the  same  to  the  treasurer.  If  the  sum  exceeds  one  hundred  dollars,  the  excess 
must  be  ai^plied  to  the  payment  of  the  expenses  of  such  person  while  in  the 
asylum;  if  the  sum  is  one  hundred  dollars  or  less,  it  must  be  kept  and  delivered 
to  the  person  when  discharged,  or  applied  to  the  payment  of  funeral  expenses 
if  the  person  dies  at  the  asyhim. 

2220.  Idiots,  imbeciles,  etc.,  not  to  be  admitted. 

Sec.  2220.  No  case  of  idiocy  or  imbecility,  or  simple  feebleness  of  mind, 
must  be  maintained  at,  nor  must  any  case  of  delirium  tremens  be  admitted  into 
the  asylum. 

2221.  Fees  of  sheriff . 

Sec.  2221.  The  person  delivering  insane  persons  to  the  asylum  is  allowed 
therefor  forty  cents  per  mile,  one  way  only,  for  the  legal  distance  from  the 
county  seat  of  the  county  where  such  insane  person  was  committed  to  the 
asylum;  and  for  every  additional. patient  taken  at  the  same  time,  twenty  cents 
per  mile.  He  must  also  receive  the  necessary  exj)ense  of  an  assistant,  when 
more  than  one  person  is  required  to  convey  such  insane  persons;  jDayment 
thereof  to  be  made  by  the  state  treasurer  on  the  controller's  warrants,  issued 
on  the  ajjproval  of  the  account  by  the  board  of  examiners. 

2222.  Fees  of  physicians. 

Sec.  2222.  The  physicians  attending  each  examination  of  an  insane  person  are 
allowed  five  dollars  each,  to  be  paid  by  the  county  treasiu-er  of  the  county 
where  the  examination  was  had  on  the  order  of  the   board  of  supervisors. 

An  Act  to  provide  further  accommodation  for  the  insane  of  the  State  of  California,  and  to 
provide  a  special  fund  therefor. 

Approved  March  27,  1872;  1871-2,  673. 

[This  act  provides  for  the  establishment  of  a  new  asylum  for  the  insane;  for 
the  appointment  of  commissioners  to  select  a  site,  and  for  the  construction  and 
management  of  the  institution.  The  site  selected  was  Napa,  and  the  asylum 
has  been  built  there.  Its  management,  as  provided  by  this  act,  has,  however, 
been  superseded  by  the  provisions  of  the  act  of  March  6,  1876,  given  below. 
By  section  22  of  that  act,  as  will  be  seen  by  reference  to  it,  this  act  was  con- 
tinued in  force  only  for  a  special  purpose.  Under  the  circumstances,  this  act 
is  omitted,  except  its  title  and  reference  as  above.] 

An  Act  to  prohibit  the  sale  of  intoxicating  liquors  within  a  certain  distance  of  the  Napa  state 
asylum  for  the  insane. 

Approved  January  15,  1874;  1873-4,  27. 

No  liquor  to  be  sold  within  one  mile  of  Napa  asylum. 

Section  1.  It  shall  not  be  lawful  for  any  person  to  keep  any  saloon  or  bar,  or 
to  sell  or  offer  for  sale  any  spirituous  or  malt  liquors,  within  one  mile  of  the 
asylum  building,  now  in  course  of  construction  upon  the  jDi'operty  in  Napa 
county  deeded  to  the  State  of  California  for  the  site  of  the  Napa  state  asylum 
for  the  insane;  and  any  person  so  doing  shall  be  guilty  of  a  misdemeanor, 
and  for  each  offense  shall  be  punished  by  a  fine  not  exceeding  five  hundred 
dollars. 

277 


2222  POLITICAL  CODE. 

Sec.  2.  This  act  shall  take  effect  and  be  in  force  from  and  after  its  passage, 
[See   in  reference  to   the  subject  of  the  foregoing   act,    section  172  of  the 
Penal  Code,  as  amended  April  3,  ISTG;  post,  13,  172.] 

An  Act  to  provide  for  the  completion  of  the  Napa  state  asylum  for  the  insane  and  for  other 
pnrposes . 

Approved  March  24,  1874;  1873-4,  565. 

[This  act  appropriated  ?()00,000  for  the  completion  of  the  Napa  insane  asj'lum; 
legalized  contracts  then  made,  and  required  the  asylum  to  be  completed  for  the 
sum  so  api)roj)riated.] 

An  Act  to  provide  for  the  future  management  of  the  Napa  state  asylum  for  the  insane. 
Approved  March  6,  1876;  1875-6,  133. 

Governor  to  appoint  five  trustees. 

.  Section  1.  Within  ten  days  after  the  passage  of  this  act  the  governor  shall 
appoint  five  trustees  to  manage  the  affairs  of  the  Napa  state  asylum  for  the 
insane,  three  of  whom  shall  be  residents  of  Napa  county;  and  he  shall  designate 
at  the  time  of  the  appointment  the  respective  terms  of  oiEce  of  said  trustees, 
under  the  following  classification,  to  wit:  three  of  said  trustees  shall  serve  for 
two  years,  and  two  of  said  trustees  shall  serve  for  four  j'ears  from  the  time  of 
their  appointment.  Their  successors  shall  be  appointed  by  the  governor,  and 
shall  hold  their  ofiices  for  the  term  of  four  years  and  until  their  successors  are 
appointed  and  qualified.  In  case  of  a  vacancy  occurring  in  said  board,  the 
governor  shall  appoint,  in  manner  aforesaid,  to  fill  the  unexpired  term. 

Trustees  to  organize. 

Sec.  2.  The  tnistees  provided  for  in  the  preceding  section  shall  qualify  by 
taking  the  usual  oath  of  office,  and  shall,  within  ten  days  after  such  qualifica- 
tion, organize  themselves  into  a  board  by  the  election  of  one  of  their  number  as 
president,  and  the  secretary  and  treasurer  hereinafter  provided  for,  and,  as 
soon  as  such  organization  has  been  j)erfected,  they  shall  notify  the  same  to  the 
"board  of  directors"  created  under  "An  Act  to  j^rovide  further  accommodation 
for  the  insane  of  the  State  of  California,  and  to  provide  a  special  fund  therefor," 
approved  March  twenty-seventh,  eighteen  hundred  and  seventy-two,  b}'  seizing 
a  notice  of  that  fact  on  the  secretary  or  president  of  said  board  of  directors. 

Offices  declared  vacant. 

Sec.  3.  As  soon  as  the  said  "board  of  directors"  of  the  Napa  state  asylum 
for  the  insane  shall  receive  the  notification  referred  to  in  the  jDreceding  section 
of  this  act,  their  offices,  and  also  those  of  all  persons  receiving  appointments 
by,  through,  or  under  them,  shall  become  vacant,  and  their  functions  as  a  board 
and  as  directors,  officers,  and  emj^loyees  shall  cease  to  exist. 

Directors  to  turn  over  books  and  joroperty. 

Sec.  4.  Upon  receiving  the  said  notification,  it  shall  be  the  duty  of  the  said 
"board  of  directors,"  their  secretary  and  treasurer,  medical  suj^erintendent, 
officers,  and  employees,  to  prepare  a  list  of  all  books,  papers,  moneys,  property, 
and  eflfect.s  of  eveiy  kind  and  nature  whatever  belonging  to  the  Naj)a  state 
asylum  for  the  insane,  or  in  their  possession,  or  under  their  control,  and  de-^ 
liver  the  said  list,  together  with  the  articles  enumerated  therein,  upon  the  order 
of  the  president  of  the  lioard  of  trustees  created  by  this  act,  taking  duplicate 
receipts  therefor,  and  filing  one  with  the  state  board  of  examiners. 

TruHtecH  to  complete  buildiufjs. 

Sec.  o.  The  trustees  created  under  this  act  shall,  as  soon  as  funds  are  pro- 
vided by  the  legislature,  cause  the  buildings  of  the  Napa  state  asylum  for  the 
insane  to  be  completed,  and  the  grounds  and  premises  to  be  improved,  under 
plans  now  existing,  as  soon  as  practicable;  provided,  that  such  alterations  as 

278 


PUELIC  INSTITUTIONS.  2222 

will  reduce  the  cost  of  construction  of  the  said  asykim  may  be  made  by  said 
board  of  trustees;  but  no  contracts  must  be  entered  into  or  liabilities  incurred 
beyond  the  amount  appropriated  by  the  legislature. 
Trustees  not  to  be  interested  parties. 

Sec.  6.  The  trustees  and  other  officers  shall  have  no  interest,  direct  or  indi- 
rect, in  the  furnishing  of  any  building  materials,  or  in  any  contract  for  the 
same,  or  in  any  contract  for  labor  in  finishing  said  buildings,  or  improving  said 
grounds  or  premises,  nor  in  any  contract  for  labor,  material,  or  supplies  for 
the  maintenance  thereof. 

Powers  and  duties  of  trustees. 

Sec.  7.  The  board  of  trustees  created  under  this  act  shall  be  known  by  the 
name  and  style  of  the  ' '  board  of  trustees  of  the  Napa  state  asylum  for  the  insane," 
and  by  that  name  they  and  their  successors  shall  be  known  in  law,  may  receive, 
take,  and  hold  property,  both  real  and  personal,  in  trust  for  the  state,  and  for 
the  use  and  benefit  of  said  asylum!  They  shall  have  power  to  govern,  manage, 
and  administer  the  affairs  of  said  asylum,  and  make  and  adopt  by-laws  for  their 
government  and  the  government  of  the  asylum.  They  shall  appoint  all  officers 
and  employees  of  said  asylum,  prescribe  their  duties,  and  remove  them  when, 
in  their  judgment,  the  good  of  the  public  service  requires  it.  They  shall  cause 
to  be  kept  a  full  and  correct  record  of  their  proceedings,  which  shall  be  open 
at  all  times  to  the  inspection  of  any  citizen  desiring  to  examine  the  same.  They 
shall  hold  stated  meetings  at  the  asylum  monthly,  and  a  majority  of  the  board 
shall  constitute  a  quorum  for  the  transaction  of  business.  They  shall  keep 
themselves  constantly  advised  of  all  items  of  labor  and  expense,  and  the  condi- 
tion of  the  buildings  and  property  of  the  asylum.  They  shall  submit  to  the 
governor  biennially,  on  or  before  the  first  day  of  September  next  preceding  the 
regular  session  of  the  legislature,  a  report  showing  the  receipts  and  expend- 
itures, the  general  condition  of  the  asylum,  the  number  of  patients  under  treat- 
ment during  the  two  precediug  years,  and  such  other  matters  touching  the  gen- 
eral affairs  of  the  asylum  as  they  may  deem  advisable. 

Trustees  to  appoint  resident  and  assistant  physicians — Salaries  and  qualifications  of 
physicians. 
Sec.  8.  The  board  of  trustees  shall  appoint  a  resident  pjiysician  and  an 
assistant  physician,  each  of  whom  shall  hold  office  for  four  years,  and  until  his 
successor  is  elected  and  qualified.  The  salary  of  the  resident  physician  shall 
be  three  thousand  dollars  per  annum,  and  of  the  assistant  physician  two  thou- 
sand dollars  per  annum;  and  each  of  them  and  their  families  shall  be  furnished 
room,  household  furniture,  provisions,  fuel,  and  lights,  at  and  from  the  supplies 
of  the  asylum.  Both  the  resident  and  assistant  physicians  shall  reside  at  the 
asylum;  shall  be  well  educated  and  experienced  physicians,  regular  graduates 
in  medicine,  and  shall  have  practiced  at  least  five  years  from  the  date  of  their 
respective  diplomas,  and  shall  not  engage  in  outside  practice.  Their  duties 
not  specified  in  this  act  shall  be  fixed  and  prescribed  in  the  by-laws  of  the 
board  of  trustees. 

Trustees  to  elect  treasurer. 

Sec  9.  The  board  of  trustees  shall  elect  a  treasurer,  who  shall  not  be  of  their 
number,  and  who  shall  hold  office  for  two  years,  and  until  his  successor  is 
elected  and  qualified.  The  treasurer  shall  qualify  by  taking  the  usual  oath  of 
office,  and  shall  give  bond,  with  good  and  sufficient  sureties,  to  be  approved  by 
the  board,  in  a  sum  not  less  than  thirty  thousand  dollars,  payable  to  the  people 
of  the  state  of  California,  and  conditioned  for  the  faithful  performance  of  his 
duties  according  to  law,  and  for  the  delivery  to  his  successor  of  all  books, 
papers,  vouchers,  moneys,  and  effects  held  by  him  in  virtue  of  his  office.     The 

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2222  POLITICAL  CODE. 

board  of  tnistees  may  increase  the  amount  of  the  bonds  of  the  treasurer,  and 
may  require  additional  security  at  any  time;  and  they  may  remove  him.  The 
treasurer  shall  act  as  secretary  of  the  board  of  trustees,  and  have  charge  of  the 
books  and  accounts  of  the  asylum,  and  all  matters  of  finance  relating  thereto. 
He  shall  keep  accurate  account  of  all  expenditures,  under  appropriate  headings, 
takiug  vouchers  for  all  moneys  paid  out,  and  make  a  detailed  statement  under 
oath  each  mouth  to  the  state  board  of  examiners  of  the  expense  of  the  preced- 
ing month,  and  shall  perform  such  other  duties  as  the  board  may  prescribe.  His 
salary  shall  be  fixed  by  the  board  of  trustees,  not  to  exceed  six  hundred  dollars 
per  annum. 
Compeiisafion  and  mileage  of  bitstees. 

Seo.  10.  Each  trustee  shall  receive  as  his  compensation  ten  dollars  for  each 
meeting  of  the  board  at  which  he  shall  be  present,  payable  out  of  any  moneys 
api)ropriated  to  the  use  of  the  asylum;  provided,  that  the  sum  paid  to  the  said 
trustee  shall  not  exceed  one  hundred  and  thirty  dollars  per  annuni;  and  pro- 
vided further,  that  any  tiaistee  whose  residence  is  out  of  the  count^  in  which 
said  asylum  is  situated  shall  be  allowed,  for  traveling  expenses,  mjl'eage  at  the 
rate  of  ten  cents  per  mile  for  the  distance  necessarily  traveled  in  attending  the 
monthly  meeting  of  the  board. 
Besident  jjhysicimi  to  be  executive  officer. 

Sec.  11.  The  resident  physician  shall  be  the  executive  officer  of  the  asylum, 
under  the  regulations  and  by-laws  of  the  trustees.  He  shall  have  control  of  the 
patients,  prescribe  or  direct  their  treatment,  adopt  sanitary  measures  for  their 
welfare,  and  discharge  such  as,  in  his  opinion,  have  permanently  recovered  their 
reason.  He  shall  maintain  discipline  among  the  subordinate  officers  and  em- 
ployees, and  enforce  obedience  to  the  laws,  rules,  and  regulations  adopted  for 
the  government  of  the  institution,  and  is  empowered  to  discharge  any  employee 
or  attendant  for  violation  of  the  laws  or  rules  of  the  asylum.  He  shall  estimate 
quarterly,  in  advance,  the  probable  expenses  of  the  asylum,  and  submit  the 
same  to  the  board  of  trustees,  at  their  last  regular  meeting  preceding  the  com- 
mencement of  such  quarter,  for  their  approval.  And  the  controller  of  state 
is  hereby  authorized  and  directed  to  draw  his  warrants  for  the  amount  of  such 
estimate,  approved  by  the  trustees,  as  soon  as  the  same  shall  have  been  approved 
by  the  state  board  of  examiners,  in  three  equal  sums,  in  favor  of  the  board 
of  trustees.  And  the  state  treasurer  is  authorized  and  directed  to  pay  the  same 
out  of  au}'  moneys  approjoriated  by  law  for  the  use  and  benefit  of  said  asylum. 
He  shall  estimate  and  report  to  the  trustees  the  amount,  kind,  and  quality  of 
furniture  and  household  furnishing  goods,  provisions,  fuel,  forage,  clothing, 
and  other  materials  required  for  the  six  months  ending  on  the  first  day  of  May 
and  November  of  each  year;  and  the  trustees  shall  then  advertise  for  four  suc- 
cessive weeks  for  contracts  for  furnishing  said  supplies.  All  contracts  shall  be 
awarded  to  the  lowest  bidder  or  bidders,  upon  their  giving  to  the  board  of  trus- 
tees satisfactory  security  for  the  faithful  performance  of  the  same.  Necessary 
expenditures,  other  tlian  those  for  provisions,  fuel,  forage,  clothing,  and  furni- 
ture, and  household  furnishing  goods,  may  be  made  by  the  resident  i^hysician, 
subject  to  the  api)roval  of  the  board. 
Monthly  report  of  plnjaician. 

Sec.  12.  The  resident  physician  shall  cause  accurate  and  careful  accounts  to 
be  ke])t  of  the  daily  expenditures  of  all  articles  of  stores  and  property  placed 
in  his  charge,  and  shall,  at  the  end  of  each  month,  submit  the  same  to  the  board 
of  trustees  for  their  inspection  ;  and  on  each  daily  report  shall  be  shown  the 
number  of  persons  fed  and  lodged  in  the  asylum,  whether  as  officers  and  their 
families,  emjiloyees  or  patients.  A  monthly  report  of  the  same  tenor  shall  also 
be  made  to  the  trustees. 

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PUBLIC  INSTITUTIONS.  2222 

Pay-roll. 

Sjeo.  13.  At  the  end  of  each  montli  the  resident  j)hysician  shall  cause  a  pay- 
roll to  be  made,  which  shall  show  the  name  of  each  person  employed  in  or 
about  the  asylum,  giving  the  capacity  in  which  each  is  employed,  the  time  em- 
ployed, the  rate  of  salary  or  wages,  and  the  amount  due  each.  Upon  receiving 
this  roll,  sworn  to  and  certified  by  the  resident  physician  and  approved  by  the 
president  of  the  board,  the  treasurer  shall  ■pa.j  the  j^ersons  named  on  the  roll 
the  sums  due  them,  taking  their  receipts  on  the  roll  for  the  moneys  received, 
which  roll,  so  receipted,  shall  be  his  voucher. 

Bills,  hoiv  audited  and  paid. 

Sec.  14,  All  bills  against  the  asylum  shall  be  presented  to  the  treasurer,  and 
be  by  him  submitted  to  the  board  of  trustees  at  their  next  regular  meeting  after 
presentation,  and  shall  be  by  them  audited  and  aj^proved  before  they  are  paid; 
and  no  money  shall  be  paid  out  by  the  treasurer,  except  as  provided  in  the  last 
section,  unless  ordered  by  the  board,  and  the  order  entered  upon  their  minutes. 

Treasurer  to  report. 

Sec.  15.  At  every  stated  meeting  of  the  board  the  treasurer  shall  present  a 
clear  and  detailed  statement  of  all  moneys  received  and  paid  out  by  him,  with 
vouchers  regularly  numbered  to  show  for  the  payments — the  statements  to 
classify  all  receipts  and  exj)enditures  under  appropriate  and  intelligible  heads. 
He  shall  also  present  his  books,  and  show  that  they  are  written  up  to  date, 
properly  posted,  and  the  balance  of  cash  in  his  hands  belonging  to  the  asylum 
shown. 

Trustees  to  examine  accounts. 

Sec  16.  The  vouchers,  statements,  and  books  of  the  treasurer  shall  be  ex- 
amined by  the  board  of  trustees  at  each  stated  meeting,  and  if  found  correct 
and  kept  in  accordance  with  the  provisions  of  this  act  and  the  by-laws,  the 
president  of  the  board  shall  give  the  treasurer  a  certificate  of  the  fact,  and 
cause  a  note  of  it  to  be  made  in  the  minutes  of  the  board.  The  minutes  of 
each  meeting  of  the  board  shall  be  approved  by  the  board  and  signed  by  the 
secretary  and  president. 
Commitment  of  insane  persons. 

Sec  17.  The  county  judge  of  any  county  in  this  state  and  the  probate  judge 
of  the  city  and  county  of  San  Francisco,  shall,  upon  application  under  oath, 
setting  forth  that  a  person  by  reason  of  insanity  is  dangerous  to  be  at  large, 
cause  such  person  to  be  brought  before  him,  and  he  shall  summon  to  appear  at 
the  same  time  and  place  two  or  more  witnesses  who  well  knew  the  accused 
during  the  time  of  the  alleged  insanity,  who  shall  testify  under  oath  as  to  con- 
versation, manners,  and  general  conduct  upon  which  said  charge  of  insanity  is 
based;  and  shall,  also,  cause  to  appear  before  him,  at  the  same  time  and  place, 
two  physicians,  who  shall  be  regular  graduates  in  medicine,  before  whom  the 
judge  shall  examine  the  charge;  and  if,  after  a  careful  hearing  of  the  case  and 
a  personal  examination  of  the  alleged  insane  person,  the  said  physicians  shall 
certify  on  oath  that  the  person  examined  is  insane,  and  the  case  is  of  a  recent 
or  curable  character,  or  that  the  said  insane  person  is  of  a  homicidal,  suicidal, 
or  incendiary  disposition,  or  that  from  any  other  violent  symptoms  the  said 
insane  person  would  be  dangerous  to  his  or  her  own  life,  or  the  lives  or  property 
of  the  community  in  which  he  or  she  may  live;  and  if  said  physicians  shall  also 
certify  to  the  name,  age,  nativity,  residence,  occupation,  length  of  time  in  this 
state,  state  last  from,  previous  habits,  premonitory  symptoms,  apparent  cause 
and  class  of  insanity,  duration  of  the  disease  and  present  condition  as  nearly  as 
can  be  ascertained  by  inquiry  and  examination;  and  if  the  judge  shall  be  satis- 
fied that  the  facts  revealed  in  the  examination  establish  the  existence  of  the 

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2222  POLITICAL  CODE. 

insanity  of  the  person  accused,  and  tLat  it  is  of  a  recent  or  curable  nature,  or 
of  a  homicidal,  suicidal,  or  incendiary  character,  or  that  from  the  violence  of 
the  symptoms  the  said  insane  person  would  be  dangerous  to  his  or  her  own  life, 
or  to  the  lives  or  property  of  others,  if  at  large,  he  shall  direct  the  sheriif  of 
the  county,  or  some  suitable  person,  to  convey  to  and  place  in  charge  of  the 
officers  of  the  insane  asylum  of  this  state  to  which  the  order  is  directed,  such 
insane  person,  and  shall  transmit  a  copy  of  the  complaint  and  commitment, 
and  physicians'  certificate,  which  shall  always  be  in  the  form  as  furnished  to 
the  com-ts  by  the  resident  physician  of  said  asylum;  and  the  person  taking 
such  insane  person  to  the  insane  asylum  shall  be  allowed  therefor  the  same 
fees  as  are  allowed  by  law  to  the  sheriff  in  such  cases,  to  be  paid  in  like 
manner.  And  the  jihysicians  attending  the  examination  aforesaid  shall  be 
allowed,  by  the  board  of  supervisors  of  the  county  in  which  the  examination  is 
had,  five  dollars  each,  unless  they  are  otherwise  paid. 

Idiots  and  imbeciles. 

Sec  18.  No  case  of  idiocy,  imbecility,  harmless,  chronic,  mental  unsound- 
ness, or  acute  mania  a  potu  shall  be  committed  to  this  asylum;  and  whenever 
in  the  opinion  of  the  resident  physician,  after  a  cai'eful  examination  of  tbe  case 
of  any  person  committed,  it  shall  be  satisfactorily  ascertained  by  him  that  the 
party  had  been  unlawfully  committed,  and  that  he  or  she  comes  under  the  rule 
of  exemi')tions  provided  for  in  this  section,  he  shall  have  the  authority  to  dis- 
charge such  person  so  unlawfully  committed,  and  return  him  or  her  to  the 
county  from  which  committed,  at  the  exi^ense  of  such  county. 

Patients  to  pny  (Jteir  exjx'nscs  when  possessed  oj^  means. 

Sec  19.  The  judge  shall  inquire  into  the  ability  of  insane  persons  committed 
by  him  to  the  asylum,  to  bear  the  actual  charges  and  expenses  for  the  time  that 
such  I'jcrson  may  remain  in  the  asylum.  In  case  an  insane  person  committed 
to  the  asylum  under  the  provisions  of  this  act  shall  be  possessed  of  real  or  j)er- 
sonal  property  sufficient  to  pay  such  charges  and  expenses,  the  judge  shall 
aj^point  a  guardian  for  such  person,  who  shall  be  subject  to  all  the  provisions 
of  the  general  laws  of  this  state  in  relation  to  guardians,  as  far  as  the  same  are 
applicable;  and  when  there  is  not  sufficient  money  in  the  hands  of  the  guardian, 
the  judge  may  order  a  sale  of  property  of  such  insane  person,  or  so  much  thereof 
as  may  be  necessary,  and  from  the  proceeds  of  such  sale  the  guardian  shall  pay 
to  the  board  of  trustees  the  sum  fixed  upon  by  them  each  month,  quarterly  in 
advance,  for  the  maintenance  of  such  ward;  and  he  also  shall,  out  of  the  pro- 
ceeds of  such  sale,  or  such  other  funds  as  he  may  have  belonging  to  such  ward, 
pay  for  such  clothing  as  the  resident  physician  shall,  from  time  to  time,  furnish 
such  insane  person;  and  he  shall  give  a  bond,  with  good  and  sufficient  sureties, 
payable  to  the  board  of  trustees,  and  approved  by  the  judge,  for  the  faithful 
Ijerfonnance  of  the  duties  required  of  him  by  this  act,  as  long  as  the  property 
of  his  insane  ward  is  sufficient  for  the  purpose.  Indigent  insane  persons 
having  kindred  of  degree  of  husband  or  wife,  father,  mother,  or  children, 
living  within  this  state,  of  sufficient  ability,  said  kindred  shall  support  such 
indigent  insane  person  to  the  extent  i^resciibed  for  paying  patients.  The  board' 
of  trustees  shall  furnisli  sucli  blank  bonds  as  are  required  by  this  section,  to 
the  several  county  judges  in  this  state,  and  to  the  probate  judge  in  the  city  and 
county  of  San  Francisco.  A  breach  of  any  bond  provided  for  in  this  act  may 
be  prosecuted  in  the  distinct  court  of  any  county  in  this  state  in  which  any  one 
of  the  obligors  may  reside,  and  the  same  sliall  be  prosecuted  by  the  district 
attorney  of  the  county  in  wliich  the  action  shall  be  brought,  and  shall  be  con- 
ducted throughout,  and  the  judgment  enforced,  as  in  a  civil  action  for  the 
recovery  of  a  debt.     Should  there  remain  in  the  hands  of  the  board  of  trustees 

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PUBLIC  INSTITUTIONS.  2222 

or  their  treasurer,  at  tlie  time  any  insane  person  is  discharged,  any  money 
unexpended,  so  paid  by  the  guardian  or  kindred,  the  same  shall  he  refunded; 
provided,  that  the  board  of  trustees  shall  not  be  required  to  refund  any  money 
for  a  fraction  of  a  month;  but  upon  the  death  of  any  insane  person,  after 
paying  the  ordinary  burial  exj^enses,  the  remainder  of  any  moneys  received 
from  the  guardian,  or  on  deposit  with  the  board  of  trustees  or  their  treasurer, 
shall  be  refunded  to  the  person  or  jDersons  thereto  entitled,  on  demand.  Any 
moneys  found  on  the  person  of  any  insane  person  at  the  time  of  arrest  shall  be 
certified  to  by  the  judge,  and  sent  with  such  person  to  the  asylum,  there  to  be 
delivered  to  the  treasurer,  to  be  applied  to  payment  of  the  expenses  of  such 
person  while  in  the  asylum;  but  upon  the  recovery  of  such  insane  person,  all 
sums  shall  be  returned  to  him  when  discharged  from  the  asylum.  The  kindred 
or  friends  of  an  inmate  of  the  asylum  may  receive  such  inmate  therefrom,  on 
their  giving  satisfactory  evidence  to  the  judge  of  the  court  issuing  the  commit- 
ment, that  they  or  any  of  them  are  capable  and  suited  to  take  care  of,  and  give 
proper  care  to  such  insane  person,  and  give  protection  against  any  of  his  acts 
as  an  insane  person.  If  such  satisfactory  evidence  appear  to  the  judge,  he  may 
issue  an  order,  directed  to  the  trustees  of  the  asylum,  for  the  removal  of  such 
person;  but  the  trustees  shall  reject  all  other  orders  or  applications  for  the 
release  or  removal  of  any  insane  person,  except  the  order  of  a  court  or  judge 
on  j)roceeding  in  habeas  corpus;  and  if,  after  such  removal,  it  is  brought  to  the 
knowledge  of  the  judge,  by  verified  statement,  that  the  person  thus  removed  is 
not  cared  for  properly,  or  is  dangerous  to  persons  or  property,  by  reason  of 
such  want  of  care,  he  may  order  such  person  returned  to  the  asylum. 
Non-residents  and  temporary  patients. 

Sec.  20.  Non-residents  of  this  state,  conveyed  or  coming  herein  while  insane, 
shall  not  be  committed  to  or  supported  in  the  Najja  state  asylum  for  the  insane; 
but  this  prohibition  shall  not  prevent  the  commitment  to  and  temporary  care  in 
said  asylum  of  persons  stricken  with  insanity  while  traveling  or  temporarily 
sojourning  in  the  state;  or  sailors  attacked  with  insanity  upon  the  high  seas, 
and  first  arriving  thereafter  in  some  port  within  this  state. 
Transfer  of  patients. 

Skc.  21.  Until  the  Napa  state  asylum  for  the  insane  shall  be  occupied  to  its 
entire  capacity,  the  judges  who  are  authorized  herein  to  commit  insane  persons 
may  order  all  persons  thereafter  by  them  duly  examined  and  declared  insane  to 
the  Napa  state  asylum;  but  the  county  judges  of  this  state,  or  the  probate  judge 
of  the  city  and  county  of  San  Francisco,  may  order  the  transfer  of  any  insane 
person  committed  from  their  respective  counties  from  one  asylum  to  the  other, 
upon  the  joint  recommendation  and  consent  of  the  resident  physicians  of  each, 
the  cost  of  such  transfer  to  be  paid  by  the  guardian  or  friends  of  the  j^atient 
transferred. 
Proceedings  against  directors  and  employees. 

Seo.  22.  An  act  entitled  "An  Act  to  provide  further  accommodation  for  the 
insane  of  the  State  of  California,  and  to  provide  a  sjiecial  fund  therefor/'  ap- 
proved March  twenty-seventh,  eighteen  hundred  and  seventy-two,  is  hereby 
continued  in  force  so  far  only  as  the  same  gives  or  creates  a  right  on  the  part  of 
the  people  of  this  state  to  proceed  against  the  directors  and  emj^loyees  men- 
tioned therein,  civilly  or  criminally,  for  any  fraudulent  or  illegal  acts  on  their 
part,  under  the  alleged  authority  of  this  act;  provided,  that  nothing  herein 
shall  be  so  construed  as  to  repeal  the  act  of  March  twenty-fourth,  eighteen 
hundred  and  seventy-four,  entitled  "  An  Act  to  provide  for  the  construction  of 
the  Napa  state  asylum  for  the  insane,  and  for  other  j)ur2)oses,"  or  any  pai't 
thereof. 

Sec.  23.  This  act  shall  take  effect  from  and  after  its  passage. 

283 


2222-2241  POLITICAL  CODE. 

An  Act  to  appropriate  four  hundred  and  ninety-four  thousand  dollars  to  pay  the  valid  and 

equitable  claims  against  the  state,  incurred  in  building  the  Napa  state  asylum  for  the  insane, 

and  to  complete  said  structure,  supply  water  therefor  and  improve  the  grounds  on  which  it  is 

situate. 

Approved,  April  1,  1876;  1875-G,  804. 

[This  net,  besides  appropriutiug  money  as  iudicated  in  the  title,  required  the 
trustees  to  investif^ate  all  claims  for  indeljtedness  incurred  by  the  board  of 
directors  appointed  under  the  act  of  March  27,  1872. 

A  fm-ther  sum  of  $48,000  was  appropriated  for  paying-  outstanding  liabilities 
and  coveiing  deficiencies  by  act  of  April  3,  187G;  1875-G,  851.] 

An  Act  to  provide  a  supply  of  water  for  the  Napa  state  asylum  for  the  insane. 
Approved  April  3,  1876;  1875-6,  8b3. 

[This  act  provided  for  the  condemnation  for  the  purpose  of  supplying  water 
to  the  asylum  of  any  springs  and  natural  sources  of  water  supply  within  a  mile 
and  a  half  of  the  asylum  grounds.] 

CHAPTEK  II. 

DEAF,    DUMB,    AND   BLIND   ASYLUM. 

Abticle   I.  General  Provisions 2237 

II.  Board  of  Directors   ." 2254 

III.  Principal  Teacher 2267 

IV.  Treasurer 2280 

ARTICLE  L 

general  provisions. 

2237.  Object  of  asylum. 

Sec.  2237.  The  deaf,  dumb,  and  blind  asylum,  located  in  Alameda  county, 
has  for  its  object  the  education  of  the  deaf,  dumb,  and  blind. 

2238.  Who  enlitled  to  its  benefits. 

Sec.  2238.  Eveiy  deaf,  dumb,  or  blind  person  resident  of  this  state,  of  suit- 
able age  and  capacity,  is  entitled  to  an  education  in  this  asylum  free  of  charge. 

2239.  Same. 

Sec.  2239.  Such  i:)ersons  not  residents  of  this  state  are  entitled  to  the  benefits 
of  this  asylum  upon  paying  to  the  treasurer  thereof  eighty-five  dollars  quarterly 
in  advance. 

2240.  Clothinrj  and  maintenance  of  pupils. 

Sec.  2240.  If  the  parents  or  guardian  of  any  piqnl  in  the  asylum  for  the  deaf, 
dumb,  and  blind,  shall  be  unable  to  clothe  such  child,  the  parent  or  guardian 
may  testify  to  such  inability  before  the  judge  of  the  county  wherein  he  or  she  is 
resident,  and  if  said  judge  is  satisfied  that  the  parent  or  guardian  is  not  able  to 
provide  suitable  clothing  for  the  child,  he  shall  issue  a  certificate  to  that  effect; 
and,  upon  i)resentation  of  such  certificate,  it  shall  be  the  duty  of  the  directors 
of  said  asylum  to  clothe  the  child,  the  expenses  to  be  paid  out  of  appropri- 
ations made  for  the  support  of  the  asylum.  All  pupils  in  the  asylum  shall  be 
maintained  at  the  e.\pense  of  the  state.  [Amendment,  approved  March  18,  1874; 
Amendments  1873-4,  115;  took  effect  from  passage. '-"^ 

2241.  Jtlindness  and  deafness  defined. 

Sec  2241.  Inability  by  reason  of  defective  sight  to  read  ordinary  printed 
matter  is  blindness,  and  inability  to  hear  ordinary  conversation  is  deafness, 
within  the  meaning  of  this  chapter. 

la)  Orii;iuu\  sf-ftlon: 

8x0.  2240.  The  pupilH  lu  the  QByluin  aro  clothed  ttnd  mnlntalned  at  the  expense  of  the  state. 

284 


PUBLIC  INSTITUTIONS.  2242-2256 

2242.  Geological  cabiriet. 

Sec.  2242.  The  state  geologist  and  regents  of  the  university  will  make  up 
from  duplicate  specimens  under  their  control  a  geological  cabinet  for  the  use 
of  the  asylum. 

2243.  Salaries,  hoiv  paid. 

Sec.  2243.  The  salaries  mentioned  in  this  chapter  must  be  paid  monthly  out 
of  the  moneys  appropriated  for  the  support  of  the  asylum. 

2244.  Approval  and  filing  of  official  bonds. 

Sec.  2244.  The  official  bonds  reqviired  by  the  provisions  of  this  chapter  must 
be  approved  by  the  board,  and  filed  and  recorded  in  the  office  of  the  secretary 
of  state. 

ARTICLE  II. 

BOAED    OP    DIRECTORS. 

2254.  Under  control  of  board  of  directors. 

Sec.  2254.  The  asylum  is  under  the  management  and  control  of  a  board  of 
directors,  consisting  of  five  persons,  appointed  and  holding  their  offices  as  pro- 
vided in  Title  I  of  Part  III  of  this  Code.     [See  ante,  368,  369.] 

2255.  Powers  and  didies  of  board. 

Sec  2255.  The  powers  and  duties  of  the  board  are  as  follows: 

1.  To  make  by-laws  not  inconsistent  with  the  laws  of  the  state,  for  their  own 
government,  and  the  government  of  the  asylum; 

2.  To  elect  the  principal  teacher; 

3.  To  elect  a  treasurer,  who  shall  not  be  a  member  of  the  board  of  directors; 

4.  To  elect  a  physician  for  the  asylum  for  the  term  of  two  years,  who  shall 
not  be  a  member  of  the  board  of  directors; 

5.  To  remove,  at  pleasui-e,  any  teacher  or  employee; 

6.  To  fix  the  compensation  of  teachers  and  emjiloyees; 

7.  To  make  diligent  inquiry  into  the  departments  of  labor  and  expense,  the 
conditions  of  the  asylum,  and  its  prosperity: 

8.  To  hold  stated  meetings  at  the  asylum  at  least  once  in  every  three  months; 

9.  To  keep  a  record  of  their  proceedings; 

10.  To  report  to  the  governor  a  statement  of  the  receipts  and  expenditures, 
the  condition  of  the  asylum,  the  number  of  pupils,  and  of  such  other  matters 
touching  the  duties  of  the  board  as  they  may  deem  advisable.  [Amendment, 
approved  March  30, 1874;  Amendments  1873-4,  36;  took  effect  July  6,  1874.^^' 

An  Act  to  confer  certain  powers  upon  the  directors  of  the  deaf,  dumb,  and  blind  asylum. 
Approved  April  1,  1876;  1875-6,  686. 

Directors  to  invest  money. 

Section  1.  The  directors  of  the  deaf  and  dumb  and  blind  asylum  are  hereby 
authorized  and  empowered  to  take,  receive,  manage  and  invest  all  moneys  and 
property  heretofore  or  hereafter  bequeathed  or  donated  to  the  said  asylum,  in 
accordance  with  the  washes  of  the  testator  or  donor,  or  if  no  conditions  are  at- 
tached to  the  bequests  or  donations,  to  invest  svich  money  or  proceeds  of  prop- 
erty for  the  best  interests  of  the  asylum. 

Sec  2.  This  act  shall  take  effect  on  and  after  its  passage. 

2256.  Approval  of  estimates  and  drawing  moneys  appi'opriated. 

Sec  2256.  If  the  board  approve  the  estimates  made  under  the  provisions  of 
section  2268,  it  must  notify  the  controller  of  state,  who  must  draw  his  warrant 

(a)  The  original  section  had  nine  subdivisions,  board  of  directors"  in  the  third.  In  the  last  subdi- 
omitting  the  one  numbered  fourth  in  the  amendment,  vision  it  had  the  word  "is"  instead  of  "they  may 
and  the  -words  "  who  shall  not  be  a  member  of  the     deem." 

285 


2250-2281  POLITICAL  CODE. 

for  the  amount  estimated,  in  three  equal  sums,  payable  to  the  board  monthly, 
out  of  any  moneys  in  the  state  treasury  appropriated  for  the  use  of  the  asylum. 

2257.  Directors  to  receive  no  salary. 

Sec.  2257.  The  dii-ectors  receive  no  compensation. 

ARTICLE  III. 

PRINCIPAl,   TEACHEB.  • 

2267.  QuaJiJJcafions. 

Sec.  22G7.  The  principal  teacher  must  have  not  less  than  three  years'  expe- 
rience in  the  art  of  teaching  the  deaf,  dumb,  and  bhnd. 

2268.  rovers  and  duties. 

Sec.  22G8.  He  is  the  chief  executive  officer  of  the  asylum,  with  powers  and 
duties  as  follows: 

1.  To  superintend  the  grounds,  buildings,  and  property  of  the  asylum; 

2.  With  the  consent  of  the  board  of  directors,  to  fix  the  number  of  and 
ai:)point  and  remove  the  assistant  teachers  and  emi^loyees; 

3.  To  prescribe  and  enforce  the  performance  of  the  duties  of  the  assistant 
teachers  and  employees; 

4.  To  control  the  pupils  and  prescribe  and  enforce  a  system  of  instruction; 

5.  To  reside  at  the  asylum; 

6.  To  keep  a  daily  record  of  his  official  acts  in  the  manner  presci'ibed  by  the 
by-laws; 

7.  To  estimate  quarterly  in  advance  the  expenses  of  the  institution,  and 
report  such  estimate  to  the  board  of  directors; 

8.  To  make  up  his  annual  accounts  to  the  first  of  July  in  each  year,  and  as 
soon  thereafter  as  possible  report  a  statement  thereof  and  of  the  condition  of 
the  asylum  to  the  board  of  directors. 

2269.  Salary. 

Sec.  22G9.  His  annual  salary  must  not  exceed  three  thousand  dollars. 

2270.  JUmd. 

Sec  2270.  He  must  execute  an  official  bond  in  the  sum  of  five  thousand 
dollars. 

ARTICLE    IV. 

TREASURER. 

2280.  Duties  of. 

Sec  2280.  It  is  the  duty  of  the  treasurer: 

1.  To  act  as  secretary  of  the  board  of  directors; 

2.  To  keep  the  accounts  of  the  board  and  of  the  receipts,  expenditures,  assets 
and  liabilities  of  the  asylum; 

3.  To  report  quarterly  to  the  board  a  statement  under  oath  of  the  receipts 
and  expenditures  of  the  preceding  quarter; 

4.  To  perform  such  other  duties  as  may  be  required  of  him  by  the  by-laws 
or  board  of  directors. 

2281.  Salary. 

Sec.  2281.  The  annual  salai-y  of  the  treasurer  is  five  hundred  dollars. 
2232.  nond. 

Sec  2282.  He  must  execute  an  official  bond  in  the  sum  of  ten  thousand 
dollars. 

[Appropriations  to  the  deaf,  dumb  and  blind  asylum,  and  for  the  education 
and  care  of  the  indigent  deaf,  dumb  and  blind  will  be  found  in  act  of  January 
25,  1872;  1871-2,  34;  April  1,  1872;  1871-2,  743;  March  30,  1874;  1873-4, 
898;  February  15,  187G;  1875-G,  53;  March  31,  187G;  1875-G,  593,  747.] 

28G 


PUBLIC  INSTITUTIONS.  2282-2296 

An  Act  to  provide  a  supply  of  water  for  the  university,  aucl  for  the  asylum  for  the  deaf,  dumb 

and  blind. 

Approved  April  1,  1876;  1875-6,  816. 

[This  act  provided  for  the  condemnation  for  the  use  of  the  university  and 
asylum  for  the  deaf,  dumb  and  blind,  of  any  springs  and  natural  sources  of 
water  supply  within  a  mile  and  a  half  of  the  university  grounds.] 


CHAPTER  III. 

STATE  LIBRARY. 

2292-  Board  of  trustees,  and  term  of  office  of. 

Sec.  2292.  The  state  library  is  under  the  control  of  a  board  of  trustees,  con- 
sisting of  five  members,  elected  by  the  legislature  in  joint  convention  assem- 
bled, and  holding  their  o£&ces  for  the  term  of  four  years. 

2293.   General  powers  and  duties  of  hoard. 

Sec.  2293.  The  powers  and  duties  of  the  board  are  as  follows: 

1.  To  make  rules  and  regulations  not  inconsistent  with  law  for  their  govern- 
ment and  for  the  government  of  the  library; 

2.  To  appoint  a  librarian; 

3.  Whenever  necessary  to  authorize  the  librarian  to  appoint  an  additional 
deputy; 

4.  To  sell  or  exchange  duplicate  copies  of  books; 

5.  To  keep  in  order  and  repair  the  books  and  proj^erty  in  the  libraiy; 

6.  To  draw  from  the  state  treasury  at  any  time  all  moneys  therein  belonging 
to  the  library  fund. 

7.  To  report  to  the  governor  biennially  a  statement  of  their  transactions. 

2294  Term  of  office  of  librarian. 

Sec.  2294.  The  librarian  holds  his  office  for  the  term  of  four  years,  unless 
sooner  removed  by  a  unanimous  vote  of  all  the  trustees. 

2295.  General  duties  of  librarian. 

Sec.  2295.  It  is  the  duty  of  the  librarian: 

1.  To  be  in  attendance  at  the  library  during  office  hours; 

2.  To  act  as  secretary  of  the  board  of  trustees,  and  keep  a  record  of  their 
proceedings; 

3.  To  purchase  books,  maps,  engravings,  paintings,  and  furniture  for  the 
library ; 

4.  To  number  and  stamp  all  books  and  maps  belonging  to  the  library,  and  to 
keep  a  catalogue  thereof; 

5.  To  have  bound  all  books  and  papers  that  require  binding; 

6.  To  keep  a  register  of  all  books  and  property  added  to  the  libraiy,  and  of 
the  cost  thereof; 

7.  To  keep  a  register  of  all  books  taken  from  the  library; 

8.  To  establish  and  maintain  a  system  of  domestic  and  foreign  exchange  of 
books,  and  to  obtain  from  the  secretary  of  state  svxch  numbers  of  all  state  publica- 
tions as  may  be  sufficient  to  meet  the  demands  of  the  system  established. 
[Amendment,  approved  March  30,  1874;  Amendments  1873-4,  37;  took  effect  July 
6,  1874.^*' 

2296.  Who  may  take  books. 

Sec.  229G.  Books  may  be  taken  from  the  libraiy  by  the  members  of  the 
legislature  during  the  sessions  thereof,  and  by  other  state  officers  at  any  time. 

(a)  The  original  section  did  not  have  the  eighth  subdivision. 

287 


2297-2305  POLITICAL  CODE. 

2297.  Books  taken  by  members  of  legislature,  when  to  be  returned— Duties  oj  con- 

troller in  relation  to. 
Sec.  2297.  Books  taken  by  members  of  the  legislature  must  be  returned  at  the 
close  of  the  session;  and  before  the  controller  draws  his  warrant  in  favor  of 
any  member  of  the  legislature  for  his  last  week's  salary,  he  must  be  satisfied 
that  such  member  has  returned  all  books  taken  by  him  and  paid  for  any  inju- 
ries thereto. 

2298.  Books  taken  by  state  officers  to  be  returned,  or  salary  not  to  be  paid. 

Sec.  2298.  The  controller,  if  notified  by  the  librarian  that  any  officer  has 
failed  to  return  books  taken  by  him  within  the  time  prescribed  by  the  rules, 
and  after  demand  made,  must  not  draw  his  warrant  for  the  salary  of  such 
officer  until  the  return  is  made,  or  three  times  the  value  of  the  books,  or  of  any 
injuries  thereto,  has  been  paid  to  the  librai-ian. 

2299.  Liability  for  injuries  to  books. 

Sec  2299.  Eveiy  person  who  injures  or  fails  to  return  any  book  taken  is 
liable  to  the  librarian  in  three  times  the  value  thereof. 

2300.  Library  fund. 

Sec.  2300.  The  state  library  fund  consists  of  the  fees  collected  and  paid  into 
the  state  treasury  by  the  secretary  of  state  and  surveyor-general.  [Ameiul- 
ment,  approved  IlarchdO,  1874;  Amendments  1873-4,  38;  took  effect  from  passage. '-^^ 

2301.  Library,  time  to  be  kept  open. 

Sec.  2301.  During  the  session  of  the  legislature  and  of  the  supreme  court,  the 
library  must  be  kept  open  every  day  from  nine  o'clock  a.  m.  until  nine  o'clock 
p.  M.,  and  at  other  times  during  such  hours  as  the  trustees  may  direct. 

2302.  Salary  of  librarian. 

Sec.  2302.  The  annual  salary  of  the  librarian  is«three  thousand  dollars. 

2303.  Salary  of  deputies. 

Sec.  2303.  The  annual  salary  of  each  deputy  is  eighteen  hundred  dollars. 

2304.  Bond  of  librarian. 

Sec.  2304.  The  librarian  must  execute  an  official  bond  in  the  sum  of  three 
thousand  dollars. 

2305.  Mlien  this  chapter  takes  effect. 

Sec  2305.  This  chapter  shall  be  in  force  and  effect  from  and  after  the  first 
day  of  May,  eighteen  hundred  and  seventy-two. 

Au  Act  to  provide  for  the  establishment  of  a  cabinet  department  in  the  state  library. 
Approved  April  1,  1872;  1871-2,  824. 

Librarian  to  arrange  cabinet. 

Section  1.  It  shall  be  the  duty  of  the  state  librarian  to  receive,  arrange  and 
properly  display,  and  take  charge  of,  in  the  state  library,  the  minerals,  precious 
metals,  mineralogical,  geological  and  fossiliferous  specimens  and  precious  stones 
hereinafter  mentioned  and  referred  to,  or  which  may  hereafter  become  the 
property  of  the  state  by  purchase  or  by  presentation. 

Purchase  of  cabinet. 

Sec  2.  The  governor  shall  appoint  three  suitable  and  disinterested  persons, 
who  shall  act  without  compensation,  and  shall  examine  and  ai:)praise  the  cabinet 
of  minerals,  precious  metals  and  stones,  and  various  specimens  com2:)Osing  the 
cabinet  belonging  to  J.  M.  Frey,  of  the  city  of  Sacramento;  and,  upon  their 
making  report  to  the  gfnernor  to  the  effect  that  the  said  cabinet  is  fully  worth 
the  sum  of  thirteen  thousand  dollars,  the  state  shall  become  the  purchaser  and 

(a)  The  original  Bectlon  did  not  have  the  words  "  and  surveyor-general:" 

288 


PUBLIC  INSTITUTIONS.  2305-2328 

owner  of  the  said  cabinet;  provided,  that  if  said  report  shall  not  recommend  the 
said  purchase,  it  shall  not  be  made. 

Ajyjjropr'iation. 

Sec.  3.  The  sum  of  thirteen  thousand  dollars  is  hereby  appropriated  out  of 
any  unappropriated  money  in  the  general  fund  to  purchase  the  said  cabinet. 

Sec.  4.  This  act  shall  take  effect  from  and  after  its  passage. 


CHAPTER  lY. 

SUPREME   COURT  LIBRARY. 

2313.  Who  may  use. 

Sec  2313.  This  library  is  for  the  use  of  the  justices  and  counselors  at  law  of 
the  supreme  court. 

2314.  Librarian  and  his  duties. 

Sec  2314.  The  secretary  of  the  supreme  court,  under  the  superrision  of  the 
court,  is  the  librarian,  and  responsible  for  the  safe  keeping  of  the  books.  Be- 
fore used  he  must  mark  and  number  the  volumes,  and  enter  them  in  a  catalogue 
kept  in  the  library. 

2315.  Who  may  take  books. 

Sec.  2315.  Books  may  be  taken  from  this  library  by  the  justices  of  the  supreme 
court.  At  the  request  of  a  counselor  of  the  court,  the  bailiff  must  take  from 
the  library  to  the  court-room  books  for  use  in  the  argument  of  any  cause. 

2316.  Fund  for  support  of. 

Sec.  2316.  The  supreme  court  library  fund  consists  of  fees  collected  by  the 
clerk  of  the  court,  as  provided  in  section  753  of  this  code,  and  is  under  the 
control  of  the  court.  Upon  its  order  the  controller  must,  without  the  approval 
of  any  board,  draw  his  warrant  upon  the  treasurer  for  the  amount  specified,  and 
in  favor  of  the  person  designated  in  such  order,  which  warrant  must  be  paid 
out  of  such  fund. 

CHAPTER  V. 

OTHER  PUBLIC  INSTITUTIONS. 

2326.  State  agricultural  society. 

Sec  2326.  The  powers,  duties,  privileges,  and  rights  of  the  California  state 
agricultural  society  are  fixed  by  "An  Act  to  incorporate  the  state  agricultural 
society,  and  to  appropriate  mon^y  for  its  sujDport,"  approved  May  thirteenth, 
eighteen  hundred  and  fifty -four,  and  the  acts  supplemental  thereto,  approved 
March  twelfth,  eighteen  hundred  and  sixty-three,  and  April  thirteenth,  eighteen 
hundred  and  sixty-three.     [See  post,  15,001.] 

2327.  University  of  California — Normal  school. 

Sec  2327.  The  control  and  management  of  the  university  of  California  and 
the  state  normal  school  are  provided  for  in  Title  III  of  Part  III  of  this  Code. 
[See  ante,  1385  and  1487.] 

2328.  State  prison. 

Sec  2328.  The  control  and  management  of  the  state  prison  is  provided  for 
in  Part  III  of  the  Penal  Code.     [See  post,  14,573.] 


19  289 


2348-2349  POLITICAL  CODE. 


TITLE  YI. 


Cn.U'TER    I.  PcBLic   Waters 2348 

II.   HiGUWAYS 2018 

III.  Toll  Roads 2779 

IV.  Toll  Bridges  and  Ferries 2843 

Y.  AVharves,  Chutes,  and  Piers 2906 

YI.  Miscellaneous  Provisions  relating  to  Public  Ways 2931 

CHAPTER  I. 

rUBLIC   WATERS. 

Abticle  I.  Genkral  Peovisions  respecting  Public  Waters 2348 

II.  Navigation   23G0 

III.  Floating  Lumbku 2389 

IV.  Wrecks  and  Wrecked  Property 2403 

V.  Pilots  and  Pilot  Commissioners 2429 

VI.  Pilot  Regulations  tor  San  Francisco,  Benicia,  and  Mare  Island 2457 

VJI.  Pilot  Eegulations  for  Humboldt  Bat  and  Bar 2470 

VIII.  Port  Wardens 2501 

IX.  San  Francisco  Harbor  and  State  Harbor   Commissioners 2521 

X.  Harbor  Commissioners  for  Poi:t  of  Eureka 2567 

XI.  Sailors  and  Sailor  Boarding  Houses 2583 

ARTICLE  I. 

general  provisions  respecting  public  waters  and  obstructions  therein. 

2348.  W}ta(  v:aters  are  public  ivays. 

Sec.  2348.  Navigable  -waters  and  all  streams  of  sufficient  capacity  to  transport 
the  products  of  the  country  are  public  ways  for  the  purposes  of  navigation  and 
of  such  transportation. 

2349.  Coriain  streams  and  icalers  declared  navigable,  and  are  piiblic  ways. 
Sec  2349.  The  following  streams  and  waters  are  declared  public  ways: 

So  much  of  a  slough  as  lies  between  Simon's  canal,  in  the  town  of  Alviso, 
and  the  bay  of  San  Francisco. 

Petal unia  river,  from  its  mouth  to  a  distance  one  third  of  one  mile  above 
Washington  street,  in  the  city  of  Petaluma. 

The  Sonoma  river,  between  its  mouth  and  a  point  opposite  Fowler's  hotel, 
in  the  town  of  San  Luis. 

The  Napa  river,  between  its  mouth  and  the  toll  bridge. 

The  Suisun  river,  between  its  mouth  and  the  town  of  Suisun  embarcadero. 

The  Sacramento  river,  between  its  mouth  and  the  mouth  of  Middle  creek. 

Feather  river,  between  its  moulh  and  a  point  fifty  feet  below  the  bridge 
crossing  Feather  river  first  above  tlic  mouth  of  the  Yuba  river. 

The  Yuba  river,  between  its  mouth  and  a  point  at  the  mouth  of  the  slough  at 
the  foot  of  F  street,  in  the  city  of  Marysville. 

The  San  Joaquin  river,  between  its  mouth  and  Sycamore  point. 

I  See  act  of  February  21,  1872,  at  end  of  this  section.] 

The  Stockton  slough,  between  its  mouth  and  the  west  line  of  El  Dorado 
street,  in  Stockton. 

The  Mokelumne  river,  between  its  mouth  and  the  first  falls. 

The  Tuolumne  river,  between  its  mouth  and  Dickinson's  ferry. 

29U 


PUBLIC  WAYS.  2349 

Deer  creek,  between  the  liouse  of  Peter  Lassen  and  its  mouth. 

Big  river,  three  miles  from  its  mouth. 

Noyo  river,  three  miles  from  its  mouth. 

Albion  river,  three  miles  from  its  mouth. 

San  Antonio  creek,  in  the  county  of  Alameda,  from  its  mouth  to  the  old  em- 
barcadero  of  San  Antonio. 

The  Arroyo  del  Medo,  in  the  county  of  Santa  Clara,  from  its  mouth  to  the 
upper  line  of  the  town  of  New  Haven. 

Mission  creek,  in  the  county  of  San  Francisco. 

Islais  creek,  in  the  county  of  San  Francisco,  from  Franconia  landing,  near 
Bay  View  turn^nke,  to  its  outlet  into  the  bay  of  San  Francisco,  and  thence 
easterly'  along-  tlie  southerly  line  of  Tulare  street  to  the  city  water  front  on 
Massachusetts  street,  of  the  width  of  the  channel  of  said  creek. 

That  portion  of  Channel  street,  in  the  city  of  San  Francisco,  and  lying  east 
of  and  between  the  easterly  line  of  Harrison  street  and  the  water  front  of  the 
bay  of  San  Francisco,  the  width  thereof  to  be  sixty  feet  from  Harrison  to  the 
northeasterly  line  of  Seventh  street,  and  one  hundred  and  forty  feet  from  the 
northeasterly  line  of  Seventli  street  to  the  city  front. 

That  certain  creek  running  through  tide  land  survey  numbered  sixty-eight, 
and  swamp  and  overflowed  land  survey  numbered  one  hundred  and  forty-five, 
from  its  mouth  to  the  head  of  tide- water  therein. 

San  Leandro  creek,  from  its  mouth  at  San  Francisco  bay  to  Andrews'  landing. 

San  Lorenzo  creek,  from  its  mouth  at  San  Francisco  bay  to  Roberts'  landing. 

Johnson's  creek,  from  its  mouth  at  San  Francisco  bay  to  Simpson's  landing. 

The  north  branch  of  Alameda  creek,  from  its  mouth  to  Eden  landing. 

[See  act  of  March  7,  1874,  at  end  of  this  section.] 

San  Rafael  and  Corte  Madera  creeks,  in  Marin  county,  from  their  mouths  as 
far  up  as  tide-water  flows  therein. 

The  Neuces  creek,  from  its  mouth  at  Suisun  bay  to  a  point  one  half  mile 
above  the  warehouse  of  George  P.  Loucks. 

Diablo  creek,  from  its  junction  with  the  Neuces  to  a  point  opposite  the  ware- 
house of  Frank  Such,  in  Contra  Costa  county. 

The  Arroyo  de  San  Antonio,  or  Keyes'  creek,  in  Marin  county,  from  its  mouth 
at  Tomales  bay  to  the  warehouses  on  the  point  at  Keyes'  embarcadero. 

[See  act  of  March  24,  1874,  at  end  of  this  section.] 

All  the  streams  and  sloughs  emptying  into  Elk  river,  and  all  streams  and 
sloughs  south  of  Eureka,  in  Humboldt  county,  w^hich  are  now  or  at  any  time 
have  been  used  for  the  purpose  of  floating  logs  of  timber,  and  all  the  sloughs 
south  of  Humboldt  point,  in  said  county,  that  at  high  water  have  a  depth  of 
two  feet  of  water  and  wide  enough  to  float  and  admit  a  boat  carrying  five  tons 
or  more  freight. 

Novato  creek,  or  estuary,  in  Marin  county,  from  its  mouth  to  Sweetzer's 
landing. 

Salinas  river  and  Elkhorn  slough,  or  Estero  Viejo,  in  Monterey  county,  from 
its  mouth  as  far  up  as  tide-water  flows. 

An  Act  declaring  the  San  Joaquin  river  and  the  Stockton  slough  navigable  from  and  to  cer- 
tain points  herein  named. 

Approved  February  21,  1872;  1871-2,  117. 

San  Joaquin  river  and  Stockton  slough. 

Section  1.  The  San  Joaquin  river,  between  its  mouth  and  the  location  of  the 
San  Joaquin  valley  railroad  bridge,  and  the  Stockton  slough,  between  its  mouth 
and  the  west  line  of  El  Dorado  street  in  Stockton,  are  hereby  declared  naviga- 
ble streams. 

291 


2349  POLITICAL  CODE. 

Sec.  2.  All  acts  and  parts  of  acts,  in  so  far  as  they  conflict  with  this  act,  are 
hereby  rejDealed. 

Sec*.  3.  This  act  shall  take  effect  and  be  in  force  from  and  after  its  passage. 

An  Act  declaring  a  certain  creek  in  Washington  township,  Alameda  county,  navigable. 
Approved  March  8,  1872;  1871-2,  307. 

Creek  and  Warm  Springs  in  Alameda  county. 

Section  1.  It  is  hereby  declared  that  a  certain  creek  in  the  townshii)  of  Wash- 
ington, Alameda  county,  California,  running  up  to  Warm  Springs  lauding,  and 
connecting  the  waters  of  the  bay  of  San  Francisco  with  said  landing,  is  naviga- 
ble, and  the  same  shall  be  kej^t  free  and  open  for  the  purposes  of  navigation 
forever. 

Sec.  2.  All  acts  or  parts  of  acts  in  conflict  with  the  provisions  of  this  act  are 
hereby  rej^ealed. 

Sec  3.  This  act  shall  take  effect  immediately. 

An  Act  to  declare  Lake  Earl  in  Del  Norte  conuty  navigable. 

Approved  February  4,  1874;  1873-4,  59, 

Lake  Earl  in  Del  Norte  county. 

Section  1.  Lake  Earl,  in  Del  Norte  county  and  State  of  California,  is  hereby 
made  and  declared  navigable. 

Sec.  2.  This  act  shall  take  effect  and  be  in  force  from  and  after  its  passage. 

An  Act  declaring  Alameda  creek  in  the  county  of  Alameda,  a  navigable  stream,  and  providing 
for  the  removal  of  obstructions  therefrom. 

Approved  March  7,  1874;  1873-4,  308. 

Alameda  creek. 

Section  1.  Alameda  creek,  from  its  mouth  on  the  bay  of  San  Francisco  to 
the  northwesterly  line  of  Mrs.  E.  T.  Kandall's  place,  is  hereby  declared  a 
navigable  stream. 

Removal  of  ohstructions. 

Sec  2.  Whenever  it  shall  be  satisfactorily  shown  by  petition,  or  otherwise, 
to  the  board  of  supervisors  of  Alameda  county,  that  by  reason  of  obstructions 
in  the  channel  or  bed,  said  creek  is  liable  to  overflow  its  banks  and  damage  the 
land  on  either  side  thereof,  it  shall  be  their  duty  to  cause  said  obstructions  to 
be  forthwith  removed. 

How  done. 

Sec  3.  The  removal  of  said  obstructions  may  be  done  under  the  supervision 
of  the  road  commissioner  of  the  township  where  said  creek  is  situated,  or  by  a 
board  of  commissioners  appointed  by  said  board  of  supervisors.  Said  commis- 
sioner or  commissioners  are  duly  authorized  to  remove  said  obstructions  in 
any  manner  that  may  best  accomplish  the  purpose;  provided,  that  in  no  event 
sball  the  growing  timber  on  either  bank  of  said  creek  be  injured  or  destroyed 
in  the  prosecution  of  said  work. 

Expense  fi. 

Sec  4.  All  expense,  of  whatever  nature  or  kind,  necessarily  incurred  in 
cariying  out  the  provisions  of  this  act,  shall  be  defrayed  by  the  parties  peti- 
tioning therefor.  Tlie  board  of  sujiervisors  may,  if  they  deem  it  necessary, 
require  of  the  petitioners  a  good  and  sufficient  bond  for  the  faithful  perform- 
ance of  the  work,  as  well  as  for  the  payment  of  the  cost  thereof.  In  no  event 
shall  the  cost  be  a  charge  ujoon  the  county  treasury. 

Sec  5.  This  act  shall  be  in  force  from  and  after  its  passage. 

292 


PUBLIC  WAYS.  2349-2350 

An  Act  to  ameud  au  act  entitled  An  Act  to  declare  navigable  the  Arroyo  de  San  Antonio,  or 
Keyes'  ci'eek,  Marin  county,  approved  March  28,  18G0. 

Approved  March  24,  1874;  1873-4,  564. 

Arroyo  de  San  Antonio,  or  Keyes'  creek,  in  Marin  county. 

Section  1.  Section  one  of  an  act  entitled  An  Act  to  declare  navigable  the  Ar- 
royo de  San  Antonio,  or  Keyes'  creek,  Marin  county,  approved  March  twenty- 
eighth,  eighteen  hundred  and  sixty,  is  hereby  amended  so  as  to  read  as  follows: 

Section  1.  So  much  of  the  stream  known  as  the  Arroyo  de  San  Antonio,  or 
Keyes'  creek,  in  Marin  county,  as  lies  between  its  mouth,  in  Tomales  bay,  and 
a  point  three  hundred  feet  above  or  east  of  the  wharf,  in  said  stream,  known  as 
the  Ocean  Roar  wharf,  is  hereby  declared  navigable;  provided,  that  should  any 
bridge  be  erected  across  the  Arroyo  de  San  Antonio  by  any  railroad  company,  or 
for  highway  puriDOses,  shall  be  required  to  leave  a  span  of  at  least  forty  feet 
over  the  deepest  jjart  of  said  creek  for  the  passage  of  lighters  and  other  boats 
plying  thereon. 

Sec.  2.  This  act  shall  be  in  force  from  and  after  its  passage. 

An  Act  declaring  the  "  Moro  Cojo"  slough  navigable. 

Approved  March  30,  1874;  1873-4,  790. 

Moro  Cojo  slough,  in  Monterey  county. 

Section  1.  The  "Moro  Cojo"  slough,  in  the  county  of  Monterey,  is  hereby 
declared  to  be  a  navigable  stream  from  a  point  where  said  slough  enters  the  Sa- 
linas river  to  tide-water. 

Sec.  2.  This  act  shall  take  effect  immediately  after  its  passage  and  approval 
by  the  governor. 

An  Act  declaring  Gallinas  slough,  or  creek,  in  Marin  county,  navigable. 
Approved  March  25,  1876;  1875-6,  483. 

Gallinas  slough,  in  Marin  county. 

Section  1.  The  slough  or  creek  situated  in  Marin  county,  known  as  Gallinas, 
or  Guyanas  slough  or  creek,  is  hereby  declared  navigable  from  its  mouth  up 
to  the  line  of  the  Sonoma  and  Marin  railroad. 

Sec.  2.  This  act  shall  take  effect  from  and  after  its  passage. 
2350.  Penalty  for  felling  trees  into  public  waters. 

Sec.  2350,  Whoever  cuts  or  causes  to  be  cut  down  any  tree,  so  that  it  falls 
into  any  stream  or  other  waters  declared  by  statute  to  be  a  public  way,  and  does 
not  remove  it  therefrom  within  twenty-four  hours  thereafter,  is  liable  to  a  pen- 
alty of  five  dollars  for  each  tree. 

An  Act  to  provide  for  the  location  of  tow  paths  along  the  banks  of  navigable  streams. 

Approved  April  1,  1872;  1871-2,  940. 

Authority  given. 

Section  1.  The  board  of  supervisors  of  each  county  in  the  state  may,  when 
public  convenience  for  the  purj^ose  of  commerce  requires  it,  cause  to  be  located 
and  opened  a  tow  path,  not  exceeding  ten  feet  in  width,  along  the  bank  or  banks 
of  any  navigable  stream  within  the  county. 
Viewers. 

Sec  2.  Tn  order  to  locate  and  open  such  tow  path,  the  same  proceedings  in 
regard  to  petition,  viewers,  etc.,  shall  be  taken  as  are  now  by  law  required  to 
be  taken  in  the  respective  counties  of  this  state  for  the  purpose  of  locating  and 
opening  public  roads  and  highways. 

Water  frontage. 

Sec  3.  The  owner  or  owners  of  any  land  over  which  a  tow  path  shall  be 
located  and  opened,  shall  not  be  deprived  of  the  water  frontage  nor  of  the  free 

293 


2350-2368  POLITICAL  CODE. 

use  and  enjoyment  of  .iny  land  so  located,  subject  only  to  tlie  right  of  the  pubKc 
to  use  the  same  for  the  pm-poses  of  commerce. 

Fences. 

Sec.  4.  It  shall  not  he  necessary  to  construct  or  maintain  fences  on  either  side 
of  any  tow  path  so  located,  but  the  board  of  supen-isors  may  make  all  necessary 
rules  and  regulations  for  the  government  and  management  of  tow  paths,  and 
may  provide  for  the  erection  of  gates  thereon  and  for  the  full  and  complete  pro- 
tection of  the  property  through  which  the  same  passes. 

Sec  5.  This  act  shall  take  effect  from  and  after  its  passage. 

ARTICLE  II. 

NAVIGATION. 

2360.  Sf earners  meetwg. 

Sec.  23G0.  When  steamers  meet  each  must  turn  to  the  right,  so  as  to  pass 
without  interference. 

2361.  Landing  and  receiring  passengers  by  small  boat. 

Sec.  2301.  "When  a  passenger  is  to  be  landed  from  a  steamer  by  means  of  a 
small  boat,  he  must  not  be  suffered  to  get  into  it  until  it  is  completely  afloat 
and  wholly  disengaged  from  the  steamer,  except  by  the  painter. 

2362.  Lines  used  for  landing  not  to  be  draivn  by  machinery . 

Sec  23(52.  No  line  used  for  the  pui'pose  of  landing  or  receiving  passengers 
must  be  attached  in  any  way  to  the  machineiy  of  any  steamer,  nor  must  the 
small  boat  used  for  such  purpose  be  hauled  in  by  means  of  such  machinery. 

2363.  The  engine  to  be  stopped. 

Sec  2303.  During  the  landing  and  receiving  of  a  passenger,  and  the  going 
and  returning  of  the  small  boat  for  the  purpose,  the  engine  must  be  stopped, 
and  must  not  be  put  in  motion,  except  to  give  sufficient  force  to  keep  the 
steamer  in  a  proper  direction  and  safe  position. 

2364.  Boats,  oais  and  signals. 

Sec.  23(54.  In  eveiy  small  boat  there  must  be  kept  a  good  and  suitable  pair 
of  oai-s;  and  in  the  night  time  a  signal,  by  means  of  a  horn  or  trumpet,  must  be 
given  to  the  steamer  from  the  small  boat,  when  having  landed  or  received  its 
passengers,  it  is  ready  to  leave  the  shore. 

2365.  Steamers  overtaking. 

Sec.  2305.  A  steamer  going  in  the  same  direction  with  another  steamer  ahead 
of  it  must  not  approach  or  pass  the  other  within  the  distance  of  ten  yards;  and 
the  steamer  ahead  must  not  be  so  navigated  as  unnecessarily  to  bring  it 
within  ten  yards  of  the  steamer  following. 

2366.  Steaviers  to  carry  signals  at  night. 

Sec  23GG.  "When  any  steamer  is  running  in  the  night  time  her  master  must 
cause  her  to  carrj'  two  conspicuous  lights;  one  exjiosed  near  her  bow  and  the 
other  near  her  stern;  the  latter  must  be  at  least  twenty  feet  above  her  deck. 

2367.  Penalties,  what  amount. 

Sec  23G7.  Ever}'  master  or  other  person  in  charge  who  violates  any  of  the 
provisions  of  the  preceding  seven  sections,  incurs  a  penalty  of  two  huudi'ed  and 
fifty  dollars  for  each  offense. 

2368.  Vessels  at  anchor  to  show  lights. 

Sec  23G8.  "When  any  vessel  is  at  anchor  in  the  night  time  in  any  of  the  harbors 
or  ports  within  the  jurisdiction  of  this  state,  the  master  or  other  person  at  the 
time  in  the  charge  of  the  vessel  must  cause  a  conspicuous  light  shown  in  her  rig- 

294 


PUBLIC  WAYS.  2368-2377 

ging  at  least  twenty  feet  above  lier  deck,  and  another  light  from  her  taffrail, 
under  penalty  of  fifty  dollars  for  every  neglect. 
2389,  No  recovery  for  collision  in  case  of  neglect. 

Sec.  23G9.  Neither  the  master  or  owner  of  any  vessel  can  recover  damages 
for  injuries  to  the  same  or  to  himself  by  a  collision  growing  out  of  a  non-com- 
pliance upon  its  part  with  the  provisions  of  the  preceding  six  sections. 

2370.  Rafts  on  the  Sacramento  and  San  Joaquin  rivers. 

Sec.  2370.  Every  raft  of  timber  floated  on  the  Sacramento  or  San  Joaquin 
rivers  at  night  must  show  two  red  lights,  one  at  each  end,  and  at  least  ten  feet 
above  the  upper  logs  or  plank  of  such  raft,  under  penalty  of  fifty  dollars  for 
every  neglect. 

2371.  Vessels  to  carry  what  boats. 

Seo.  2371,  Every  vessel  proj)elled  by  steam,  navigating  any  waters  of  this 
state  and  cariying  passengers,  must  be  provided  with  boats  as  follows: 

1.  If  of  five  hundred  tons  measurement,  one  first-class  life  boat;  one  row 
boat,  twenty-five  feet  long  by  seven  wide,  capable  of  carrying  fifty  persons  each; 
and  at  least  one  other  good  row  boat; 

2.  If  of  two  hundred  and  fifty  and  less  than  five  hundred  tons  measurement, 
at  least  two  ordinary  row  boats; 

3.  If  of  less  than  two  hundred  and  fifty  tons  burden,  at  least  one  small  row 
boat. 

All  which  boats  must  be  attached  in  such  manner  that  they  can  be  launched  at 
any  time  for  immediate  use. 

2372.  Penalty,  what  amount. 

Sec  2372.  The  master  and  owners,  and  each  of  them,  of  any  vessel  not  pro- 
vided with  boats  as  required  in  the  preceding  section,  are  subject  to  a  penalty 
of  not  exceeding  two  hundred  and  fifty  dollars. 

2373.  Racing,  penalty  for. 

Sec.  2373.  If  the  master  or  other  person  in  charge  of  a  steamer  navigating 
any  of  the  waters  of  this  state  and  used  for  the  conveyance  of  passengers,  or  if 
the  engineer  or  other  person  in  charge  of  the  boiler  or  other  apparatus  for  the 
generation  of  steam  does,  for  the  purpose  of  increasing  speed  or  excelling  any 
other  vessel  in  speed,  suffer  to  be  created  an  undue  or  an  unsafe  quantity  of 
steam,  he  is  subject  to  a  penalty  of  five  hundred  dollars. 

2374.  Steamboats  to  wear  spark  catchers. 

Sec  2374.  All  high-pressure  steamboats  navigating  the  Sacramento  and  San 
Joaquin  rivers,  or  any  of  their  tributaries  above  the  mouth  of  the  San  Joaquin 
river  or  the  city  of  Sacramento,  must  have  secm-ely  attached  to  theii-  chimneys 
metal  bonnets  or  spark  catchers. 

2375.  Bispectors  to  supervise  and  direct  spark  catchers. 

Sec  2375.  All  such  bonnets  or  spark  catchers  must  be  constructed  under  the 
direction  and  supervision  of  the  United  States  inspectors  of  steamboats  for  the 
district  of  San  Francisco. 

2376.  Compensation  of  inspectors. 

Sec  2376.  For  each  bonnet  or  spark  catcher  worn  by  any  steamboat  in- 
spected or  constructed  under  the  direction  of  and  certified  to  by  the  inspector, 
he  may  receive  from  the  owner  thereof  ten  dollars  as  a  compensation  for  his 
services  for  such  direction,  supervision,  or  inspection  and  certificate. 

2377.  Neglect  of  duty  and  penalty  therefor. 

Sec  2377.  Every  owner  or  master  who  navigates  a  steamboat  without  bonnets 
or  spark  catchers  inspected  and  attached  as  required  by  the  preceding  three 

295 


2377-2393  POLITICAL  CODE. 

sections,  is  subject  to  a  penalty  of  twenty  dollai's  for  each  day  he  navigates  his 
boat  without  the  same.  The  owner  of  such  boat  is  further  liable  for  all  damage 
done  by  reason  of  such  neglect. 

2378.  Owner  liable  for  masfer's  or  engineer's  penalties. 

Sec.  2378.  The  owners  of  every  steamboat  are  responsible  for  the  good  con- 
duct of  the  master  or  other  person  in  charge  employed  by  them,  and  they  are 
jointly  and  severall}'  liable  for  any  j)enalty  incurred  by  the  master,  engineer, 
or  other  person  in  charge,  which  cannot  be  collected  fi'om  him  by  due  course 
of  law,  as  if  they  were  his  sureties. 

2379.  Penalties,  lioiv  recovered. 

Sec.  2379.  The  penalties  given  by  this  article  may  be  recovered  by  the 
disti'ict  attorney  of  any  county  bordering  on  the  water  where  the  offense  was 
committed  or  the  penalty  incurred,  to  whom  notice  is  first  given,  and  when 
recovered  are  to  be  equally  divided  between  the  common  school  and  indigent 
sick  fund  of  the  county  whose  distiict  attorney  recovers  the  same.  Any  judg- 
ment recovered  hereunder  is  a  lien  on  the  vessel  against  whose  owners  or  master 
it  is  recovered. 

ARTICLE  III. 

FLOATING    LUMBER. 

2389.  Definition  of  lumber. 

Sec  2389.  The  word  "lumber"  is  used  in  this  article  to  designate  all 
timber,  whether  in  logs,  boards,  planks,  or  beams,  and  whether  in  rafts  or 
otherwise,  but  does  not  include  the  sort  of  wood  commonly  called  drift  wood. 

2390.  Owner  may  reclaim  lumber. 

Sec  2390.  Whenever  any  lumber  di-ifts  upon  any  island  in  any  of  the  waters 
of  this  state,  or  uj^on  the  bank  of  any  such  waters,  the  owner  of  the  lumber  may 
remove  it  on  payment  or  tendering  to  the  owner  or  occupant  of  the  land  the 
amount  of  the  damages  which  he  has  sustained  by  reason  thereof,  and  which 
may  accrue  in  its  removal;  and  if  the  parties  cannot  agree  as  to  the  amount  of 
such  damages,  either  party  may  have  the  same  appraised  by  two  disinterested 
citizens  of  the  county,  Avho  may  hear  proofs  and  determine  the  same  at  the 
expense  of  the  owner  of  the  lumber. 

2391.  If  not  taken  axcay,  to  be  turned  over  to  sheriff. 

Sec  2391.  If  the  owner  of  such  lumber  does  not,  within  three  months  from 
the  time  it  was  so  drifted,  take  the  same  away,  the  owner  or  occupant  of  the 
land  must  deliver  a  bill  of  his  charges  and  appraisement  of  damages,  together 
with  the  lumber,  to  the  sheriff  of  the  count}^  and  thereafter  the  sheriff  must 
dispose  of  the  same  as  is  required  by  Article  IV  of  this  chapter  with  regard  to 
wrecked  perishable  property. 

2392.  Application  of  proceeds  when  sold. 

Sec.  2392.  When  sold,  the  proceeds  of  the  lumber  must  be  applied,  first,  to 
the  payment  of  the  charges  of  sale,  and  in  liquidation  of  the  expenses  and 
damages  awarded  to  the  person  entitled  thereto;  and  the  residue  must  be  paid 
to  the  county  treasurer,  to  be  by  him  paid  over  to  the  owner,  or  his  representa- 
tive or  assigns,  on  the  production  of  satisfactory  proof  of  ownership  to  the 
county  judge,  and  on  his  order  therefor  made  within  one  year  after  its  receipt. 

2393.  Subsequent  disposition  of  proceeds. 

Sec  2393.  The  rejection  by  the  county  judge  of  any  claimant's  right  to  such 
proceeds  is  conclusive,  unless  within  six  months  thereafter  he  commences  action 
therefor.  In  case  no  claim  is  made  or  sustained  to  such  proceeds,  the  same 
must,  by  the  county  treasurer,  Ijo  placed  in  the  common  school  fund  of  the 
county. 

2UG 


PUBLIC  WAYS.  2403-2409 

AKTICLE  IV. 

WRECKS    AND    WRECKED    PROPERTY. 

2403.  Duties  of  officers  and  citizens. 

Sec.  2403.  The  sheriff  in  each  county  must  give  all  possible  aid  and  assist- 
ance to  vessels  stranded  on  its  coast,  and  to  the  persons  on  board  the  same,  and 
exert  himself  to  save  and  preserve  such  persons,  vessels,  and  their  cargoes,  and 
all  goods  and  merchandise  which  may  be  cast  by  the  sea  upon  the  land,  and  to 
this  end  may  employ  as  many  persons  as  he  may  think  proper.  All  citizens 
must  aid  the  sheriff  when  required. 

2404.  Officers,  etc. ,  entitled  to  salvage — Salvage  not  to  exceed  half  value  of  prop- 

erty saved. 
Sec  2404.  Sheriffs  and  all  persons  employed  by  them  or  aiding  in  the  recovery 
and  preservation  of  wrecked  property,  are  entitled  to  a  reasonable  allowance  as 
salvage  for  their  services,  and  to  all  expenses  incurred  by  them  in  the  perform- 
ance of  such  services,  out  of  the  property  saved;  and  the  officer  having  the 
custody  of  such  property  must  detain  it  until  the  same  are  paid  or  tendered. 
But  the  whole  salvage  claimed  must  not  exceed  one  half  of  the  value  of  the 
property  or  proceeds  on  which  it  is  charged;  and  every  agreement,  order,  or 
adjustment  allowing  a  greater  salvage  is  void,  unless  ordered  and  allowed  by 
the  county  judge. 

2405.  Owners  of  wrecked  property  may  reclaim  it. 

Sec  2405.  "Wrecked  property  may  be  kept  or  reclaimed,  at  the  time  of  the 
wreck,  by  the  owner,  consignee,  or  other  person  entitled  to  the  possession;  but 
if  any  person  has  a  just  claim  for  salvage  and  necessary  expenses  incurred  in 
saving  it,  he  must  be  paid  before  the  property  is  reclaimed. 

2406.  Sheriff  to  keep  possession  until  owner  found. 

Sec  2406.  The  sheriff  of  every  county  in  which  any  wrecked  property  is 
found,  when  no  owner  or  other  person  entitled  to  possession  appears,  must 
take  possession  of  it  in  the  name  of  the  people,  cause  the  value  thereof  to  be 
appraised  by  disinterested  persons,  and  keep  it  in  some  safe  place  to  answer 
the  owner's  claims. 

2407.  Perishable  jiroperty. 

Sec  2407.  If  it  is  in  a  j^erishable  state,  the  sheriff  must  apply  to  the  county 
judge,  upon  a  verified  petition,  for  an  order  authorizing  him  to  sell  it.  If  the 
judge  is  satisfied  that  a  sale  of  the  property  would  be  beneficial  to  the  parties 
interested,  he  must  make  the  order  applied  for,  and  the  j^roperty  must  then  be 
sold  at  public  auction,  at  the  time  and  in  the  manner  specified  in  the  order, 
and  the  proceeds,  deducting  the  expenses  of  sale,  as  the  same  is  settled  and 
allowed  by  such  judge,  must  be  paid  to  the  treasurer  of  the  county. 

2408.  Order  for  surrender  to  claimant. 

Sec  2408.  If,  within  a  year  after  the  finding,  any  person  claims  the  projierty 
or  its  proceeds,  and  establishes  his  claim  by  evidence  satisfactory  to  the  county 
judge,  such  judge  must  make  an  order  directing  the  officer  in  whose  possession 
the  property  or  its  proceeds  may  be  to  deliver  the  same  to  the  claimant,  upon 
the  payment  of  a  reasonable  salvage  and  the  necessary  expenses  of  preservation. 

2409.  Claimant  to  first  give  bond. 

Sec  2409.  Before  making  the  order,  the  judge  must  require  from  the  claim- 
ant a  bond  to  the  people,  with  one  or  more  sufficient  sureties,  to  be  approved 
by  the  judge  and  filed  with  the  county  clerk,  in  a  penalty  double  the  value  of 
the  property  or  proceeds,  conditioned  for  the  payment  of  all  damages  that  may 
be  recovered  against  such  claimant  or  his  representatives,  within  three  years 
after  its  date,  by  any  person  establishing  title  to  the  propei-ty  or  proceeds. 

297 


2410-2416  POLITICAL  CODE. 

2410.  Aclion  on  bond. 

Sec.  2410.  If  the  bond  becomes  forfeited,  the  county  judge,  upon  the  appli- 
cation, supported  by  proof,  of  the  person  entitled  to  the  benefit  of  it,  must 
make  an  order  for  its  prosecution  for  such  j^erson's  benefit,  and  at  his  risk  and 
expense. 

2411.  Owner  maij  sue,  although  claim  rejected. 

Sec.  2411.  The  rejection  by  the  judge  of  any  claim  does  not  preclude  the 
claimant  from  maintaining  an  action  for  the  recovery  of  such  property  or  its  pro- 
ceeds against  the  ofiicer.  If  the  plaintiff  in  any  such  action  jirevails,  there 
must  be  deducted  from  the  damages,  in  addition  to  salvage  and  exjDenses,  all 
the  defendant's  costs. 

2412.  Salvage  to  be  stated  in  loriting. 

Sec.  2412.  Every  officer  to  whom  an  order  for  the  delivery  of  wrecked  prop- 
erty or  the  payment  of  its  proceeds  is  directed,  must  present  to  the  claimant 
exhibiting  it  a  written  statement  of  the  claims  for  salvage  and  expenses.  If  the 
claimant  refuses  to  allow  such  amount,  it  must  be  adjusted  as  hereinafter  pro- 
vided. 

2413.  rroceedings  to  settle  disputed  claims  to  salvage. 

Sec  2413.  If  in  any  case  the  amount  of  salvage  and  expenses  are  not  settled 
by  agreement,  the  county  court  of  the  county,  on  the  application  of  the  owner 
or  consignee  of  the  jjroperty,  or  the  master  or  supercargo  having  charge  thereof 
at  the  time  of  the  wreck,  or  of  a  claimant  having  an  order  therefor,  or  of  a  per- 
son claiming  salvage  or  expenses,  must  determine  the  same  in  a  summary  way, 
either  by  itself  hearing  the  allegations  and  proofs  of  the  party,  or  by  referring 
the  questions  to  three  disinterested  freeholders  of  the  county,  who  must  have 
the  same  powers  and  must  proceed  in  the  same  manner  as  referees  in  civil 
actions,  and  whose  decisions  as  to  the  whole  amount  and  as  to  the  sums  to  be 
paid  to  each  person  interested  must  be  entered  as  the  judgment  of  the  county 
court. 

2414.  Costs  of  contest. 

Sec.  2414.  The  fees  and  expenses  of  the  contest  must  be  paid  by  the  person 
upon  whose  application  it  was  had,  and  are  a  charge  on  the  property  saved. 
Each  referee  is  entitled  to  such  per  diem  and  expenses  as  the  county  judge  may 
deem  just. 

2415.  Wrecked  properixj  not  claimed  to  be  sold. 

Sec  2415.  If  within  a  year  after  saving  wrecked  proj^erty  no  claimant  of  the 
property  or  its  proceeds  api)ears,  or  if  within  three  months  after  a  claim  the 
salvage  and  expenses  have  not  been  paid,  or  a  suit  for  the  recovery  of  the  prop- 
erty or  its  proceeds  has  not  been  commenced,  the  officer  in  whose  custody  it 
may  be  must  sell  it  at  public  auction,  if  not  already  sold,  and  pay  the  proceeds 
of  such  sale,  deducting  salvage  and  expenses,  into  the  treasury  of  this  state,  for 
the  benefit  of  the  parties  interested;  but  in  no  case  must  any  deduction  of  sal- 
vage and  expenses  be  made  unless  the  amount  has  been  determined  by  the 
county  court  of  the  county,  a  copy  of  whose  oi'der  and  of  the  evidence  in  sup- 
port tliereof  must  be  transmitted  by  the  judge  to  the  controller.  If  any  money 
paid  to  a  county  treasurer  under  section  2407  remains  in  his  hands  more  than 
a  year  after  it  has  been  paid  to  him,  the  same  must  be  paid  into  the  state 
treasury. 

2416.  Notice  of  sale. 

Sec  241G.  Public  notice  of  every  sale  of  wrecked  property,  under  the  pro- 
visions of  this  chapter,  must  be  published  by  the  officer  making  the  sale  for  at 
least  two  weeks  in  succession  in  one  or  more  newspapers  printed  in  the  county, 

298 


PUBLIC  WAYS.  2416-2434 

or  if  none  is  printed  therein,  tlien  by  written  or  printed  notices  in  three  of  the 
most  public  places  in  such  county,  posted  up  at  least  fifteen  days  previous  to 
such  sale.  Every  notice  must  state  the  time  and  place  of  the  sale,  and  contain 
a  j^articular  description  of  the  property  to  be  sold. 

2417,  Notice  of  wrecked  properhj. 

Sec.  2417.  Every  sheriff  into  whose  possession  any  wrecked  projierty  comes 
must  immediately  thereafter  publish,  for  at  least  two  weeks  in  succession,  in  one 
or  more  of  the  newspapers  printed  in  this  state,  a  notice  directed  to  all  parties  in- 
terested, giving  a  minute  description  of  the  property,  and  of  every  bale,  box,  case, 
piece,  or  parcel  thereof,  and  of  the  marks,  brands,  letters,  and  figures  on  each, 
and  stating  where  the  same  then  is  and  its  actual  condition,  and  the  name,  if 
known,  of  the  vessel  from  which  it  came,  her  master  and  supercargo,  and  the 
place  where  such  vessel  then  is,  and  her  actual  condition. 

2418.  Expense  of  notice. 

Sec.  2418.  The  expense  of  publishing  notices  under  the  provisions  of  this 
chapter  is  a  charge  upon  the  property  or  proceeds  to  which  it  relates. 

AETICLE  V. 

PILOTS    AND    PILOT    COMMISSIONERS. 

2429.  Qualifications  of  pilots. 

Sec  2429.  No  person  must  be  appointed  a  pilot  unless  he  is  an  American 
citizen,  over  the  age  of  twenty-one  years,  with  a  practical  knowledge  of  the 
management  of  sailing  vessels  and  steamboats,  and  of  the  tides,  soundiugs, 
bearings,  and  distances  of  the  several  shoals,  bars,  rocks,  points  of  land,  light- 
houses, and  fog  signals  of  the  ports  and  harbors  for  which  he  is  appointed,  of 
good  moral  character,  and  temperate,  with  the  skill  and  ability  necessary  to 
discharge  the  duties  of  pilot. 

2430.  Commissions  and  license. 

Sec  2430.  Pilots  appointed  by  commissioners  must  be  carefully  examined  as 
to  their  qualifications,  and  if  found  to  be  qualified  and  worthy,  must  receive 
licenses  as  pilots  for  the  term  of  twelve  months.  "Whenever  the  commissioners 
have  cause  for  withholding  a  renewal  of  such  license,  notice  thereof  must  be 
given  to  such  pilot  by  the  commissioners  ten  days  prior  to  the  expiration  of  his 
license. 

2431.  Pilots  to  take  official  oath  and  give  bond. 

Sec.  2431.  Every  pilot  must  execute  an  official  bond  in  the  sum  of  five  thou- 
sand dollars,  to  be  approved  by  the  officer  or  board  appointing  him.  The 
bonds  of  pilots  appointed  by  commissioners  must  be  filed  with  such  com- 
missioners. 

2432.  Vessel,  oioner,  etc.,  liable  for  pilotage. 

Sec  2432.  All  vessels,  their  tackle,  apparel,  and  furniture,  and  the  master 
and  owners  thereof,  are  jointly  and  severally  liable  for  pilotage  fees,  to  be 
recovered  in  any  court  of  competent  jurisdiction. 

2433.  Owners  to  compensate  pilots  for  loss. 

Sec  2433.  If  any  pilot,  in  endeavoring  to  assist  or  relieve  any  vessel  in  dis- 
tress, suffers  loss  or  damage  in  his  boats,  sails,  tackle,  rigging,  or  appurtenances, 
the  master,  owner,  or  consignee  of  such  vessel  must  pay  the  value  of  such  loss 
or  damage,  to  be  ascertained  by  the  commissioners. 

2434.  Pilot  to  show  commission  or  license,  ivhen. 

Sec  2434.  Every  pilot,  on  boarding  a  vessel,  when  required  by  the  master 
thereof,  must  exhibit  his  commission  or  license  as  pilot.    A  refusal  so  to  do  sub 

299 


2434^2440  POLITICAL  CODE. 

jects  him  to  a  forfeiture  of  his  commission  or  license,  and  to  a  recovery  of  fifty- 
dollars  on  his  bond  in  a  suit  instituted  for  that  i^urpose  by  the  authority 
ajJiiouitiug  him. 

2435.  Pilots  carried  to  sea  or  detained. 

Sec.  2435.  Every  pilot  carried  to  sea  against  his  will,  or  unnecessarily  de- 
tained on  board  of  a  vessel  when  a  pilot  boat  is  in  attendance  to  receive  him, 
is  entitled  to  receive  the  sum  of  eight  dollars  per  day  while  necessarily  absent 
or  detained,  not  to  exceed  in  the  aggregate  the  sum  of  one  thousand  dollars  in 
any  one  case,  which  sum  may  be  recovered  by  action  against  the  master  or 
owner  of  the  vessel  so  taking  him  away. 

2436.  Pilots  for  ports  other  than  San  Francisco,  Mare  island,  Benicia,  and  Hum- 

boldt bay. 
Sec.  243G.  Pilots  for  all  the  ports  in  this  state,  other  than  San  Francisco, 
Mare   island,    Benicia,    and    Humboldt   bay,  are   governed   by  the   following 
regulations: 

1.  Thej'  must  keep,  for  the  jiurj^ose  of  piloting,  at  least  one  boat  for  every 
six  pilots,  in  good  condition,  and  seaworthy,  sufficiently  large  to  cruise  in 
heavy  weather,  to  be  exclusively  used  as  a  pilot  boat; 

2.  They  must  cruise  at  least  ten  marine  miles  seaward  from  the  headlands  at 
the  entrance  of  the  port; 

3.  They  shall  receive  for  piloting  every  vessel  into  or  out  of  port  the  sum  of 
eight  dollars  per  foot  draught; 

4.  When  the  person  commanding  any  vessel  refuses  to  take  a  pilot,  the  pilot 
first  offering  his  services  is  entitled  to  half  pilotage; 

5.  For  incompetency,  neglect  of  duty,  or  other  good  cause,  the  governor  may 
suspend  or  remove  any  pilot  appointed  by  him; 

6.  They  must  strictly  observe  and  obey  all  legally  established  quarantine 
regulations. 

2437.  Further  duties  of  pilots. 

Sec.  2437.  When  cruising  off  or  standing  out  to  sea,  j^ilots  must  go  to  a 
vessel  nearest  to  shore,  or  in  the  most  distress,  under  a  penalty  of  one  hun- 
dred dollars;  for  refusing  to  go  on  board  a  vessel  when  required,  a  like  penalty 
of  one  hundred  dollars  ma}'  be  imposed;  in  either  case,  npon  conviction,  the 
pilot  may  be  suspended  or  expelled,  at  the  discretion  of  the  commissioners. 

2438.  Violating  regulations. 

Sec.  2438.  For  ever}'  violation  of  the  duties  and  regulations  herein  specified, 
the  pilot  so  violating  is  liable  on  his  official  bond  to  the  party  aggrieved  to  the 
amount  of  the  damages  sustained. 

2439.  Piloting  vessels  without  license. 

Sec  2439.  Any  person  not  the  master  or  owner,  and  not  holding  a  commis- 
sion or  license  as  a  i)ilot,  who  pilots  any  vessel  into  or  out  of  any  harbor  or  port 
of  this  state  for  which  there  are  commissioned  or  licensed  pilots,  must  be 
punished  therefor  as  provided  in  the  Penal  Code,  section  379,  and  must  pay 
to  the  pilot  entitled  to  pilot  such  vessel  the  amount  of  pilotage  or  towage  col- 
lected by  him. 

2440.  Pdol  commissioners  for  San  Francisco,  Mare   island,  and  Benicia,  hoxo 

appointed. 
Sec  2440.  There  must  bo  ai:)ioointed  by  the  governor,  by  and  with  the  advice 
of  the  senate,  three  experienced  and  competent  shipmasters  or  nautical  men, 
citizens  of  tlie  United  States,  juid  residents  in  either  of  the  cities  of  San  Fran- 
cisco, Oakland,  Vallejo,  or  Benicia,  or  of  the  towns  of  Brooklyn  or  Alameda,  a 
board  of  pilot  commissioners  for  the  ports  of  San  Francisco,  Mare  island,  and 
Benicia. 

300 


PUBLIC  WAYS.  2441-2457 

2441.  Pilot  commissioners  for  Humboldt  bay  and  bar,  koto  appointed. 

Sec.  2441,  There  must  be  appointed  by  the  governor  three  pilot  commis- 
sioners for  Humboldt  bay  and  bar.  Two  of  the  persons  so  appointed  must  be 
resident  business  men  and  the  other  a  shipmaster  or  nautical  man,  and  a  resi- 
dent of  Eureka,  Humboldt  county,  who  must  constitute  a  board  of  pilot  com- 
missioners for  Humboldt  bay  and  bar. 

2442.  Term  of  office. 

Sec.  2442.  The  commissioners  hold  their  offices  during  the  pleasure  of  the 
power  appointing  them,  not  exceeding  four  years  from  the  date  of  their  com- 
missions. 

2443.  Boards  to  organize,  and  meetings. 

Sec.  2443.  The  commissioners  miist  organize  as  boards  respectively  by  the 
election  of  presidents,  secretaries,  and  treasurers.  They  must  provide  for 
themselves  offices,  in  which  they  must  meet  as  follows:  The  "  San  Francisco 
board"  must  meet  once  a  month  in  the  city  of  San  Francisco,  and  the  "  Hum- 
boldt board  "  must  meet  at  Eureka  on  the  first  Mondays  in  January,  April, 
July,  and  October. 

2444.  Powers  of  president. 

Sec.  2444.  The  president  of  each  board  is  authorized  to  administer  oaths  in 
regard  to  any  matter  proj)erly  before  it  and  to  issue  subpoenas  in  like  cases  for 
witnesses.  A  witness  disobeying  such  subpoena  served  on  him  must  pay  to  the 
board  one  hundred  dollars,  for  which  judgment  may  be  recovered  by  the  presi- 
dent in  a  civil  action, 

2445.  Powers  of  boards. 

Sec.  2445,  Each  board  must  make  by-laws  and  rules  for  the  government  of 
pilots  appointed  by  it;  and  may  adjourn  their  regular  meetings  from  time  to 
time.  The  Humboldt  board  must  hold  a  special  meeting  on  notice  of  one 
member,  published  in  a  newspaper  in  Humboldt  county  five  days  prior  to  the 
proposed  meeting.  The  San  Francisco  board  may  appoint  a  secretary  and  fix 
his  compensation,  not  to  exceed  the  sum  of  two  hundred  and  fifty  dollars  j^er 
mouth.  The  secretary  of  the  Humboldt  board  must  be  one  of  the  members 
thereof, 

2446.  Secretaries  of  boards,  and  records. 

Sec  2446,  The  secretary  of  each  board  must  keep  a  journal  of  all  its  pro- 
ceedings and  acts,  and  a  register  of  all  pilots  appointed,  their  residence  and 
date  of  license;  and  must,  under  order  of  the  board,  issue  licenses  to  be  signed 
by  the  president,  and  countersign  the  same.  The  secretary  of  the  Humboldt 
board  is  the  treasurer  thereof. 

2447.  Not  to  be  interested  in  pilot-boats. 

Sec  2447,  Neither  the  commissioners  nor  their  secretaries  must  have  any 
interest  in  any  pilot-boat  or  steam-tug,  nor  in  the  earnings  thereof,  other  than 
for  compensation  as  herein  provided.  Any  one  violating  this  section  forfeits 
his  office, 

ARTICLE  YI, 

PILOT   REGULATIONS   FOR    SAN   FRANCISCO,    MARE   ISLAND,    AND   BENICIA, 

2457.    To  examine  and  license  pilots  and  tug-boats. 

Sec  2457.  The  board  of  commissioners  must  examine  and  license,  in  the 
manner  prescribed,  not  less  than  fifteen  nor  more  than  twenty  pilots  for  the 
port  of  San  Francisco,  and  not  more  than  two  pilots  for  the  ports  of  Mare 
island,  Vallejo,  and  Benicia,  exclusive  of  steam-tug  pilots.  They  must  also 
license  for  the  same  ports  pilots  solely  for  the  purpose  of  being  attached  to 

301 


2i57-24G2  POLITICAL  CODE. 

steam-tug  pilot-boats,  capable  of  towing  and  piloting  vessels  of  such  registered 
tonnage  as  may  be  specified  in  the  license.  Whenever  a  steam-tug  pilot-boat  is 
licensed,  the  license  must  state  whetlier  it  is  limited  or  unlimited.  If  it  is 
limited  to  a  class  of  vessels,  it  must  specify  the  maximum  of  tons  registered 
measurement  of  vessels  it  is  licensed  to  tow  or  joilot. 

2458.  Steam  tug-boai  license. 

Sec.  2458.  Pilots  must  at  all  times  keep  for  their  exclusive  use  boats  of  such 
description  and  good  condition  as  directed  by  the  board.  Whenever  a  pilot  is 
licen.sed  to  be  attached  to  a  steam-tug  pilot-boat,  the  license  must  contain  the 
name  of  the  pilot  and  the  name  and  steam  power  of  such  boat;  and  in  all 
cases,  before  the  issuing  of  the  license,  satisfactory  proof  must  be  made  to  the 
board  that  such  steam-tug  i)ilot-boat  is  of  sufficient  power  to  tow  vessels  of  the 
tonnage  for  which  it  is  licensed  to  and  from  sea,  and  to  and  from  San  Francisco, 
Vallejo,  Mare  island,  and  Benicia,  at  ordinary  times.  Such  steam-tug  pilot- 
boats  must  have  all  the  apj^liances  needed  for  the  service  for  which  the}'  are  to 
be  employed,  and  must  have  the  certificate  of  the  United  States  inspector  of 
steamboats.  A  steam-tug  pilot  can  only  act  as  pilot  for  and  with  the  steam- 
tug  for  which  he  is  licensed,  and  for  piloting  and  towing  vessels  of  such  ton- 
nage, registered  measurement,  as  may  be  named  in  his  license.  If  any  steam- 
tug  pilot-boat  undertakes  to  tow  or  pilot  any  vessel  of  a  registered  tonnage 
beyond  that  for  which  it  is  licensed,  such  steam-tug  pilot-boat,  her  tackle  and 
apparel,  and  the  i^ilot  and  owner  thereof,  are  liable  for  all  damages. 

2459.  Bu(y  of  pilots  to  arrest. 

Sec.  2459.  Every  pilot  in  charge  of  a  vessel  arriving  in  the  port  or  harbor  of 
San  Francisco  must  safely  moor  the  vessel  in  such  position  as  the  master  of  the 
vessel  or  harliormaster  may  direct.  He  must  jirevent  all  persons  (exce^jt  officers 
of  the  state  or  federal  governments,  owners  or  consignees  of  the  vessel  or  cargo, 
and  persons  admitted  on  the  express  order  of  the  master)  from  boarding  such 
vessel  until  she  has  been  safely  moored.  To  enforce  the  provisions  of  this  sec- 
tion and  other  i:)olice  regulations  for  the  harbor,  every  pilot  in  charge  of  a 
vessel  entering  the  harbor  of  San  Francisco  is  authorized  and  emj^owered  to 
arrest  every  one  who,  in  opposition  to  the  master's  orders,  persists  in  boarding 
such  vessel,  or  who,  having  boarded  her,  refuses  to  leave  on  the  command  of 
such  master  or  pilot;  when  so  arrested  he  must  be  immediately  brought  before 
the  police  judge's  court,  or  admitted  to  bail,  as  provided  in  the  Penal  Code. 

2460.  To  render  monthly  account  of  pilotage. 

Six.  2400.  Every  pilot  of  the  harbors  of  San  Francisco,  Mare  island,  Vallejo, 
and  Benicia,  must,  once  in  each  month,  render  to  the  board  an  account  of  all 
moneys  received  by  him  or  by  any  other  person  for  him  or  on  his  account,  and 
pay  five  per  cent,  thereof  to  the  board,  in  full  compensation  for  its  official 
services,  for  the  services  of  its  secretary  and  treasurer,  and  all  incidental 
expenses. 

2461.  Board  may  revoke  licen.<ie. 

Sec.  2461.  The  board  has  power  summarily  to  suspend  pilots  for  misconduct, 
inattention  to  their  duty,  intoxication,  or  viohition  of  any  of  the  rules  and  regu- 
lations provided  by  the  Ijoard  for  the  government  of  pilots,  and  to  revoke  the 
license  of  pilots  for  the  causes  hereinafter  mentioned,  upon  due  proof  thereof, 
as  hereinafter  provided.  The  board  must  immediately  suspend  every  pilot  com- 
plained of  until  the  complaint  is  investigated  and  decided. 

2462.  Causes  for  revocation. 

Sec.  2402.  Any  pilot  may  be  dci:)rivod  of  his  license  before  its  expiration  for 
the  following  causes  only : 

1.  For  neglect,  for  thirty  days  after  the  same  becomes  due,  as  provided  in  the 

302 


PUBLIC  WAYS,  24G2-24G6 

second  preceding  section,  to  render  an  account  to  tlio  board  of  pilot  commis- 
sioners of  all  moneys  received  by  him  for  pilotage; 

2.  For  neglect  for  thirty  days  after  the  same  becomes  due,  to  pay  over  to  the 
board  the  five  per  cent,  on  the  pilotage  money  received  by  him; 

3.  For  rendering  to  the  board  a  false  account  of  pilotage  received; 

4.  For  absenting  himself  from  duty  for  more  than  one  month  at  any  one 
time,  except  upon  leave  granted  by  the  board,  or  by  reason  of  sickness  or  per- 
sonal injury; 

5.  For  refusing  to  exhibit  his  license  when  requested  to  do  so  by  the  master 
of  any  vessel  he  may  have  boarded; 

G.  For  habitual  or  occasional  intoxication,  whetlier  the  same  occurs  while 
in  charge  of  any  vessel  as  pilot  or  in  charge  of  a  pilot-boat,  or  at  any  other 
time; 

7.  For  negligently,  ignorantly,  or  willfully  running  any  vessel  on  shore,  or 
otherwise  rendering  her  liable  to  injury.  Any  pilot  deprived  of  his  license 
under  this  subdivision  is  thereafter  ineligible  to  receive  a  license  as  pilot; 

8.  For  willful  violation  of  the  rules  and  regulations  adopted  by  the  board  of 
commissioners  for  the  government  of  pilots. 

2463.   Complaint  against  pilot  to  be  verified,  and  how  disposed  of. 

Sec.  24G3.  No  comj)laint  against  any  pilot  for  any  of  the  charges  specified 
in  the  preceding  section  must  be  entertained  by  the  board,  unless  it  is  within 
the  knowledge  of  the  commissioners  or  reduced  to  writing  and  verified,  as  in 
civil  actions.  When  a  written  complaint  is  filed,  the  pilot  accused  must  be 
forthwith  served  with  a  copy  thereof  by  the  secretary,  and  required  to  appear 
and  answer  within  ten  days  thereafter.  If,  upon  the  hearing  of  a  complaint 
and  the  testimony  in  relation  thereto,  the  board  adjudges  the  complaint  well 
founded,  and  the  pilot  guilty  of  any  of  the  acts  or  causes  herein  declared  suffi- 
cient for  depriving  him  of  his  license,  the  board  must  by  order  so  declare,  and 
forthwith  revoke  his  license.  Such  order  must  be  entered  of  record  in  the 
minutes  by  the  secretary. 
1^464.  Decision  of  boards  to  be  final. 

Sec.  2464.  All  the  decisions  of  the  board,  touching  the  revocation  of  licenses, 
suspension  of  pilots  and  refusal  to  reappoint  a  pilot,  as  provided  in  the  pre- 
ceding section,  are  final  and  without  right  of  review  or  appeal  to  any  court  of 
law;  but  the  board  may,  in  its  discretion,  grant  a  rehearing  in  any  case  for 
cause  shown  in  writing,  duly  verified  by  the  party  affected  thereby. 

2465.  Certain  pilotage  to  be  agreed  on. 

Sec.  2465.  The  pilotage  inside  the  heads  to  the  anchorage  opposite  San  Fran- 
cisco and  about  the  harbor,  or  between  the  harbor  of  San  Francisco  and  the 
ports  of  Mare  island,  Vallejo  or  Benicia,  must  be  at  such  rates  as  agreed  on 
between  the  parties,  not  to  exceed  five  dollars  per  foot  draught. 

2466.  Rates  of  pilotage. 

Sec.  2466.  The  following  are  the  rates  of  pilotage  into  or  out  of  the  harbor  of 
San  Francisco:  Vessels  under  five  hundred  tons,  five  dollars  per  foot  draught; 
vessels  over  five  hundred  tons,  five  dollars  per  foot  draught,  and  four  cents  per 
ton  for  each  and  every  ton  of  registered  measurement;  vessels  engaged  in  the 
whaling  or  fishing  trades,  one  dollar  per  foot  draught.  When  a  vessel  is  spoken 
and  the  services  of  a  pilot  are  declined,  one  half  the  rates  must  be  paid.  If  the 
vessel  is  inward  bound,  the  above  rates,  and  one  half  rates  in  this  section  men- 
tioned are  chargeable  only  when  the  vessel  is  sjDoken  off  the  entrance  to  the 
harbor,  and  outside  the  bar.  In  all  cases  where  inward  bound  vessels  are  not 
spoken  until  inside  the  bar,  the  rates  of  pilotage,  and  one  half  pilotage,  must 
be  reduced  fifty  per  cent. 

303 


24G7-24S1  POLITICAL  CODE. 

2467.  Pilotage  ofoidicard  bound  vessels. 

Sec.  24:G7.  Any  vessel  in  tow  of  a  steam-tug,  outward  boimd,  or  between  the 
harbor  of  San  Francisco  and  the  ports  of  Mare  ishuid,  Vallejo  or  Benicia,  is  not 
liable  for  pilotage  unless  a  licensed  pilot  is  actually  employed.  If  a  pilot  is 
employed  by  any  outward  bound  vessel  in  tow  of  a  steam-tug  not  licensed,  the 
rates  of  pilotage  are  one  half  the  rates  specified  in  the  preceding  section. 

2468.  Certain  vessels  exempt  from  pilotage. 

Sec.  24G8.  All  vessels  coasting  between  San  Francisco  and  any  port  in 
Oi-egon,  or  in  Washington  or  Alaska  territories,  and  all  vessels  coasting  between 
ports  of  this  state,  are  exempt  from  all  charges  for  pilotage,  unless  a  pilot  is 
actually  employed.  A  steam  tug  jiilot-boat  is  in  no  case  allowed  to  charge  for 
pilotage  or  towage  unless  the  service  of  such  boat  is  actually  accepted. 

AETICLE  VII. 

PILOT    EEGIXATIONS    FOR    HUMBOLDT    BAY    AND    BAR. 

24'76.  Board  to  appoint  and  remove  pilots. 

Sec.  2476.  The  Humboldt  board  may  appoint  for  Humboldt  bay  and  bar 
Buch  number  of  pilots  as  are  necessary,  subject  to  be  removed  by  the  board  at 
any  time. 

2477.  To  make  rules  to  govern  themselves  and  pilots. 

Sec.  2477.  The  commissioners  may  make  by-laws  and  rules  for  their  own  gov- 
ernment and  for  the  government  of  the  pilots,  and  fix  penalties  for  the  breach 
of  the  same — a  copy  whereof  they  must  furnish  each  pilot  appointed.  They 
may  also  suspend  or  revoke  the  licenses  of  pilots  appointed  by  them,  for  inca- 
pacity or  misconduct. 

2478.  Pilots  to  he  attached  to  steamboats — Damages. 

Sec  2478.  All  pilots  licensed  or  appointed  for  Humboldt  bay  must  be 
attached  to  a  steamboat  well  furnished  and  fitted  for  the  service,  having  the 
necessary  hawsers  and  spring  lines  suitable  to  cross  and  tow  vessels  over  Hum- 
boldt bar  in  ordinarily  rough  weather.  Any  damage  to  a  vessel  in  tow  of  k 
pilot  boat,  resulting  from  negligence  or  carelessness,  may  be  recovered  of  the 
jjilot  boat,  its  owners,  or  the  pilots  in  charge  thereof  at  the  time  the  injuiy 
occuiTed;  they  are  justly  and  severally  liable  therefor. 

2479.  Pilot  having  priority. 

Sec.  2479.  The  pilot  who  brings  any  vessel  into  the  port  has  priority  in  pilot- 
ing or  towing  the  same  out,  and  the  master  of  the  vessel  outward  bound  must 
apply  for  jjilotage  or  towage  on  board  the  pilot  boat  which  brought  the  vessel 
in,  and  tender  the  pilotage  or  towage  fee.  Such  pilot,  or  a  suitable  substitute, 
must  immediately  render  the  required  service,  and  for  a  failure  so  to  do  forfeits 
his  appointment.  If  the  pilot,  in  bringing  the  vessel  in,  was  guilty  of  negli- 
gence or  carelessness,  he  thereby  forfeits  his  right  of  priority. 

2480.  Pilotage  and  to)rrige. 

Sec.  2480.  The  following  fees  are  collectible  by  the  pilots  of  Humboldt  bay: 

1.  For  piloting  vessels,  eight  dollars  per  foot  draught; 

2.  For  towage,  an  amount  to  be  agreed  upon  between  the  parties. 

2481.  Pilot  responsible  for  loss  or  detention  of  vessel. 

Sec  2481.  If  any  vessel  bound  for  Humboldt  bay  is  lost  or  unnecessarily 
detained  for  want  of  a  pilot  or  steam  tug-boat  after  raising  a  signal  for  a  pilot 
within  eight  miles  of  the  bar  at  tlie  entrance  of  the  bay,  the  pilots  may  be  sus- 
pended or  displaced  In"  the  commissioners,  and  tliose  guilty  of  negligence  or 
inattention  must  j)ay  to  the  commissioners  a  sum  not  exceeding  five  hundred 

304 


PUBLIC  WAYS.  2481-2488 

dollars,  to  be  recovered  in  a  sviit  by  them,  and  are  liable  to  the  owners  of  the 
lost  or  detained  vessel  in  the  amount  of  dama,t;e  resulting  from  sneh  ne<^ligenoc 
or  inattention.  The  commissioners  must  publish  all  proceedings  had  in  such 
cases. 

2482.  Commissioners  to  recover  forfeitures ,  etc. 

Skc.  2482.  The  commissioners  must  sue  for  and  recover  all  penalties  and  for- 
feitures from  pilots,  masters,  or  owners  of  vessels,  or  other  persons,  or  fi'omthe 
vessels  violating  any  of  the  provisions  of  this  article.  The  money  so  collected 
must  be  paid  into  the  county  treasury  of  Humboldt  county,  for  the  use  of  the 
j)ub]ic  schools,  the  commissioners  first  deducting  therefrom,  if  sufficient,  enough 
to  defray  their  salaries  and  necessary  expenses. 

2483.  Compensation  of  commissioners. 

Sec.  2483.  The  commissioners  must  each  receive  the  sum  of  four  dollars  per 
day  for  each  day  actually  employed  in  the  discharge  of  their  duties,  and  all 
necessary  expenses  for  stationery,  lights,  and  fuel  used  in  their  office,  which  sum 
must  be  deducted  from  the  moneys  received  by  them  before  depositing  the  same 
in  the  county  treasury. 

2484.  Secretary  to  publish  receipts. 

Sec.  2484.  On  the  first  week  in  January  of  each  year  the  secretaiy  of  the 
board  must  cause  to  be  published  in  a  newspaper  published  in  Humboldt  county 
a  full  account  of  all  the  receij^ts  and  expenditures  for  the  year  previous. 

2485.  Pilots  to  obsei've  regulations. 

Sec.  2485.  The  commissioners  of  Hu.mbo]dt  bay  and  bar  must  strictly  observe 
and  enforce  the  following  regulations: 

1.  A  j^ilot  absenting  himself  from  his  duty  for  more  than  two  months  forfeits 
his  license; 

2.  Each  i^ilot  must  apply  for  a  renewal  of  his  license  ten  days  before  the  ex- 
piration thereof ,  othei'wise  it  must  not  necessarily  be  renew^ed; 

3.  If  a  pilot  becomes  intoxicated  while  in  charge  of  a  vessel  as  pilot  he  must 
be  suspended  or  dismissed  and  his  license  withdrawn. 

2486.  License,  hoiv  forfeited. 

Sec.  2486.  Licenses  of  pilots  are  forfeited  and  must  be  withdrawn  by  the 
board  of  commissioners  in  the  following  cases: 

1.  A  failure  to  renew  his  bond  or  sureties  when  required  by  the  board; 

2.  Willful  violation  of  any  duty  prescribed  by  law  or  a  regulation  of  the  board; 

3.  Negligently  losing  a  vessel; 

4.  Mental  derangement; 

5.  Habitual  drunkenness. 

Notice  of  any  charge  must  be  given  to  the  pilot  accused,  and  an  opportunity 
to  defend  himself  given  before  his  removal. 

2487.  Pilot  losing  vessel. 

Sec.  2487.  A  pilot  negligently  losing  a  vessel  must  not  thereafter  receive  a 
license  as  a  pilot,  and  is  liable  for  all  damages  sustained  in  consequence  of  such 
neglect.  If  a  pilot  negligently  runs  a  vessel  on  shore,  he  must  receive  no  pilot- 
age; and  he  is  liable  on  his  bond  for  all  damages  sustained. 

2488.  Extra  services. 

Sec  2488.  The  master,  owner,  or  consignee  of  any  vessel  to  whom  any  i^ilot 
may  have  rendered,  upon  request  of  either  of  them,  any  extra  service  for  the 
preservation  of  such  vessel  while  in  distress,  must  pay  such  j^ilot,  in  addition 
to  his  regular  fees,  such  amount  as  the  commissioners  determine  to  be  a  reason- 
able and  just  reward,  if  no  special  agreement  has  been  made  between  such 
master,  owner,  or  consignee  of  such  vessel  and  the  pilot. 
20  305 


2489-2491  POLITICAL  CODE. 

24S9.  Full  pilotage. 

Sec.  2489.  A  pilot  boarding-  any  vessel  displaying  a  signal  for  jx  pilot  is 
entitled  to  receive  full  pilotage. 

2490.  Further  fees. 

tStc.  2490.  The  comiuissioners  are  entitled  to  charge  for  each  license  to  a  pilot 
a  sum  not  exceeding  tifty  dollars;  and  any  master  of  a  coasting  vessel,  being  an 
American  citizen,  can,  upon  application  to  the  pilot  commissioners,  obtain  a 
special  license  for  the  use  of  such  vessel  only,  by  paying  the  commissioners  for 
the  same  at  the  rate  of  one  dollar  per  ton;  all  such  vessels  must  be  under  one 
hundred  and  seventy-five  tons  burden. 

2491.  Claims  against  board. 

Sec.  2491.  All  claims  against  the  commissioners  must  be  considered  at  a  stated 
meeting,  and  if  correct  must  be  allowed  and  paid. 

An  Act  to  establish  pilots  and  pilot  regulations  for  the  port  of  San  Diego. 
Approved  Marcli  26,  1872;  1871-2,  650. 

Pilot  commissioners  of  San  Diego. 

Section  1.  It  shall  be  the  duty  of  the  governor  to  appoint  one  citizen,  resi- 
dent of  San  Diego,  as  pilot  commissioner.  The  president  of  the  board  of 
tnistees  and  the  president  of  the  chamber  of  commerce  of  said  city  shall  be 
ex  officio  i^ilot  commissioners.  The  three  persons  named  shall  constitute  a 
board  of  pilot  commissioners,  with  the  powers  and  duties  as  hereinafter 
provided. 
Oath. 

Sec.  2.  Each  commissioner  shall,  before  entering  upon  his  official  duties, 
tate  the  following  oath  or  affirmation,  which  shall  be  indorsed  on  his  commis- 
sion, and  shall  be  signed  by  him,  and  certified  by  the  county  judge  of  the 
county  of  San  Diego:  "I  do  solemnly  swear  (or  affirm,  as  the  case  may  be) 
that  I  will  support  the  constitution  of  the  United  States  and  the  constitution  of 
the  State  of  California,  and  that  I  will  faithfully  discharge  the  duties  of  the 
office  of  i)ilot  commissioner,  without  fear,  favor,  or  affection,  according  to  the 
best  of  my  ability." 
Tenure  of  office. 

Sec.  3.  The  lioard  of  pilot  commissioners  shall  hold  their  offices  during  the 
pleasure  of  the  power  appointing  them,  not  exceeding  four  years. 
Meetings,  officers,  rules,  quorum,  etc. 

Sec  4.  The  board  of  pilot  commissioners  shall  meet  at  least  once  in  each 
month.  They  shall  elect  one  of  their  number  president,  who  shall  be  authorized 
to  administer  oaths,  and  under  his  hand  and  private  seal  to  issue  subpoenas  for 
the  attendance  of  witnesses  in  all  cases  arising  before  the  board  under  this  act. 
A  witness  disobeying  such  subp(jena  shall  forfeit  and  pay  a  sum  not  exceeding 
one  hundred  dollars,  which  may  be  sued  for  and  recovered  in  a  civil  action,  in 
the  name  of  the  president  of  the  board.  It  shall  make  by-laws  and  rules  for 
its  own  government  of  the  pilots,  not  inconsistent  with  the  laws  of  this  state, 
or  of  the  United  States.  A  majority  of  such  board  shall  constitvite  a  quorum 
for  the  transaction  of  business,  and  may  meet  and  adjourn  from  time  to  time, 
according  to  adjournment  or  aj)pointment. 
Organization  of  hoard. 

Sec.  5.  The  commissioners  may  organize  as  a  board  at  any  time  after  their 
appoiiitniout  and  qualification.  After  their  organization  they  shall  proceed  to 
examine  and  license,  in  the  manner  prescribed  herein,  not  more  than  four  pilots, 
for  the  port  of  San  Diego;  i:)rovided,  that  nothing  in  this  section  shall  be  so 
construed  as  to  remove  any  pilot  until  his  commission  shall  expire. 

300 


PUBLIC  WAYS.  2491 

Qualification  of  pilots. 

Sec.  6.  No  person  shall  be  appointed  a  pilot  unless  he  is  an  American  citizen, 
over  the  age  of  twenty-one  years,  with  a  practical  knowledge  of  the  manage- 
ment of  sailing  vessels  and  steamboats,  and  of  the  tides,  soundings,  bearings, 
and  distances  of  the  several  shoals,  bars,  rocks,  points  of  land,  light-house,  and 
fog  signals  of  the  port  and  harbor  of  San  Diego. 

Oath  and  bond  of  pilots. 

Sec.  7.  Every  pilot  receiving  a  license  shall,  before  entering  on  the  discharge 
of  his  duties,  take  the  oath  prescribed  by  the  constitution  of  this  state,  which 
shall  be  indorsed  upon  his  license,  signed  by  him,  and  certified  by  the  president 
of  the  board;  and  shall  give  a  bond  in  the  sum  of  twenty-five  hundred  dollars, 
with  two  sureties,  to  be  approved  by  the  board  and  recorded  in  the  count}' 
recorder's  office  of  San  Diego  county,  made  payable  to  the  State  of  California, 
and  conditioned  that  he  will  faithfully  perform  all  the  duties  required  of  him 
as  a  pilot  under  this  act,  and  will  observe  the  rules  and  regulations  and  decis- 
ions of  the  board.  .The  pilots  shall  renew  their  bonds  whenever  the  board 
may  deem  it  necessary  and  shall  so  order.  In  all  cases  where  a  pilot  shall  have 
been  deprived  of  his  license  before  the  expiration  thereof  for  any  of  the  causes 
hereinafter  sjDecified,  it  shall  be  the  duty  of  the  president  of  the  board,  j^ro- 
vided  a  majority  of  the  board  shall  instruct,  to  place  the  bond  of  such  pilot  in 
the  hands  of  the  attorney-general  of  the  State  of  California  for  collection.  If 
any  amount  be  collected  thereon,  in  such  suit,  it  shall  be  paid  to  the  board  and 
shall  constitute  a  fund  out  of  which  it  shall  be  the  duty  of  the  board  to  provide 
rewards  to  encourage  the  relief  of  vessels  and  passengers  in  distress,  and  gen- 
erally to  encourage  the  j)ilots  in  the  energetic  performance  of  their  duties. 

Mooring  of  vessels. 

Sec.  8.  It  shall  be  the  duty  of  every  pilot  in  charge  of  a  vessel  arriving  in 
the  harbor  of  San  Diego  to  have  the  vessel  safely  moored  in  such  a  position 
as  the  master  may  direct. 

Pilots  candied  to  sea. 

Sec.  9.  Every  pilot  carried  to  sea  against  his  will,  when  a  pilot  boat  is  in 
attendance  to  receive  him,  shall  be  entitled  to  receive  the  sum  of  eight  dollars 
j)er  day,  while  absent,  which  sum  may  be  recovered  from  the  master  or  owner 
of  the  vessel  so  taking  him  away;  provided,  the  amount  herein  allowed  to  be 
recovered  shall  in  no  case  exceed  one  thousand  dollars. 

Revocation  of  license. 

Sec.  10.  Any  pilot  may  be  deprived  of  his  license  before  the  expiration 
thereof  for  the  following  causes: 

1.  For  refusing  to  exhibit  his  license  when  requested  to  do  so  by  the  master 
of  any  vessel  he  may  have  boarded. 

2.  For  habitual  or  occasional  intoxication,  whether  the  same  shall  occur 
while  in  charge  of  a  pilot  boat  or  at  any  other  time. 

3.  For  negligently,  ignorantly,  or  willfully  running  any  vessel  on  shore  or 
otherwise  rendering  her  liable  to  injury;  provided,  that  any  jjilot  deprived  of 
his  license  under  this  subdivision  shall  thereafter  be  ineligible  to  a  license  as  a 
pilot  under  this  act. 

Piloting  without  license. 

Sec.  11.  Any  person  not  being  the  master  or  owner,  not  holding  a  license  as 
pilot,  who  shall  pilot  any  vessel  into  or  out  of  the  harbor  of  San  Diego  shall 
be  deemed  guilty  of  a  misdemeanor,  and  on  conviction  in  any  court  of  compe- 
tent jurisdiction  shall  be  punished  by  a  fine  not  exceeding  five  hundred  dollars, 
or  by  imprisonment  not  exceeding  ninety  days. 

307 


2491-2501  POLITICAL  CODE. 

Pilot  fees. 

Sec.  12.  All  vessels,  their  tackle,  apparel,  and  funnture,  and  tlie  master 
and  owners  thereof,  shall  be  jointly  and  severally  liable  for  pilotage  fees,  to  be 
recovered  in  any  court  of  competent  jurisdiction. 

Bights  of  pilots  to  preference. 

Sec.  13.  "W^lien  two  or  more  pilots  shall  offer  their  ser-vdces  to  a  vessel  outside 
of  a  line  from  Punto  Lomas  and  the  southeast  end  of  Zuinga  shoal,  the  pilot 
first  offering  his  sen-ices  shall  have  the  preference;  and  if  the  master  of  any 
vessel  shall  refuse  to  observe  such  rule  of  preference,  and  to  take  tbe  pilot 
entitled  to  be  prefen-ed  on  board,  the  vessel,  her  appurtenances,  the  master 
and  owner  thereof,  shall  be  jointly  and  severally  liable  to  the  pilot  entitled  to 
such  preference  for  one  half  of  the  amount  of  pilotage  he  would  have  been 
entitled  to  claim  had  his  services  been  accej)ted. 

Bate  of  pilotage. 

Sec.  14.  The  following  shall  be  the  rates  of  pilotage  into  and  out  of  the 
harbor  of  San  Diego:  all  vessels  under  five  hundred"  tons,  five  dollars  per  foot 
draught;  all  vessels  over  five  hundred  tons,  five  dollars  per  foot  draught,  and 
four  cents  per  ton  for  each  and  every  ton  of  registered  measurement;  all  vessels 
engaged  in  the  whaling  or  fishing  trades,  one  dollar  per  foot  draught.  "When 
a  vessel  is  spoken  and  the  services  of  a  pilot  are  declined,  one  half  of  the 
rates  shall  be  paid.  All  vessels  coasting  between  San  Diego  and  any  port  in 
Oregon,  or  in  Washington  and  Alaska  territories,  and  all  vessels  coasting  be- 
tween jDorts  of  this  state,  and  all  steamers  from  Panama  connecting  with  the 
Panama  railroad,  touching  at  said  port  of  San  Diego,  bound  to  other  coast 
ports,  shall  be  exempt  from  all  charges  for  pilotage  unless  a  pilot  be  actually 
employed. 

Pilots  absenting  themselves. 

Sec  15,  All  pilots  absenting  themselves  from  San  Diego  for  more  than  thirty 
days  shall  forfeit  his  commission,  except  in  case  of  sickness. 

Sec.  1G.  This  act  shall  take  effect  and  be  in  force  from  and  after  its  passage. 


ARTICLE  VIII. 

PORT    WARDENS. 

£"501.  Number  of  port  ivardens,  term  of  office. 

Sec  2501.  There  are  four  port  w^ardens  for  the  i:)ort  and  harbor  of  San  Fran- 
cisco, and  one  for  each  and  every  other  port  of  entry  within  this  state. 

2502.  Board  for  San  Francisco. 

Sec  2502.  Of  the  wardens  apjoointed  in  San  Francisco  two  or  more  must  be 
master  mariners.  They  must  act  in  concert  in  the  discharge  of  their  duties, 
and  are  known  as  the  board  of  port  wardens  for  the  port  of  San  Francisco. 

2503 .  TJv  lij  of  roar  dens . 

Sec.  2508.  The  port  wardens,  when  required  by  any  person  interested  in 
either  vessel  or  cargo,  must  survey  any  vessel  arriving  in  distress,  or  which  has 
sustained  damage  or  injury  at  sea,  and  survey  in  whole  or  in  part  the  cargo 
thereof;  and  must  snn-ey  the  hatches,  stowage,  and  cargo  of  all  vessels  laden 
with  general  or  assorted  merchandise  belonging  or  consigned  to  various  parties. 

2504.  To  keep  open  record. 

Sec.  2504.  They  must  keep  in  a  book  pi'ovided  for  .such  purpose  a  record  of 
all  surveys,  signed  by  the  warden  making  the  survey,  at  all  times  open  for  in- 
spection by  any  person  interested  in  the  vessel  or  cargo  surveyed,  of  which  all 

308 


PUBLIC  WAYS.  2504-2510 

persons  requiiing  them  must  be  furnished  with  copies  certified  under  the  hand 
of  the  wai'den  or  one  of  the  board  of  wardens  and  seal  of  the  board,  on  payment 
of  the  fee  therefor. 

2505.  Surveys,  and  xohnt  same  inusf,  set  forth. 

Sec.  2505.  In  all  surveys  made  b^'  a  jiort  warden  he  must  set  foiih  clearly 
and  fully  the  nature  of  the  damage;  if  of  merchandise,  whether  from  actual 
contact  with  sea  water  or  through  the  excess  of  water  in  the  hold  of  the  vessel, 
or  from  the  humidity  or  sweat  of  the  hold,  bad  stowage,  or  from  such  other 
cause  by  which  in  his  judgment  the  damage  has  been  occasioned.  If  the 
survey  is  of  a  damaged  vessel  he  must  give  a  full  account  of  all  the  loss  and 
injury  which  she  has  sustained,  and  recommend  the  repairs.  He  must  state 
the  value  of  the  vessel  in  her  damaged  condition,  and  also  the  value  of  the  re- 
pairs recommended,  setting  forth  what  parts  are  to  be  suj^j^lied  anew  and  what 
parts  to  be  put  in  repair. 

2506.  Hay  call  assistance,  but  no  charge  therefor. 

Sec.  250G.  AVhenever  a  jDort  warden  deems  it  necessary  he  may  call  to  his 
assistance,  on  a  survey,  a  shijo-carpenter,  rigger,  sailmaker,  or  other  person 
practically  acquainted  with  the  merchandise  to  be  surveyed  or  parts  of  the 
vessel  to  be  repaired,  who  must  be  sworn  to  examine  proj^erly  and  to  render 
with  the  warden  a  correct  and  faithful  report  of  the  surveys.  No  additional 
charge  must  be  made  therefor  to  the  vessel  unless  their  survej^  is  required  by 
the  owner  or  agent  thereof. 

2507.  Sales  of  lorecks,  vessels  and  merchandise  for  foi'eign  tinderivi'ifei's. 

Sec.  2507.  All  wrecked  or  damaged  vessels,  or  materials  from  the  same,  and 
all  merchandise  sold  at  public  auction  for  account  of  underwriters  residing 
abroad,  when  required  by  any  party  having  an  interest  in  the  same,  or  for 
account  of  whom  it  may  concern,  or  upon  which  claims  are  to  be  made  against 
underwriters  residing  abroad,  must  be  sold  under  the  insj)ection  of  a  warden  of 
the  port  where  such  sale  is  made.  And  the  warden  must  separate  sound  goods 
from  those  damaged,  and  certify'  specially  the  nature,  and,  as  far  as  can  be  done, 
the  extent  of  such  damage.  No  port  warden  has  authority  to  sell  or  disj^ose  of 
any  j^roj^erty  that  may  have  been  surveyed  by  him  without  the  consent  of  the 
owner  or  agent  of  the  same;  nor  when  the  settlement  of  losses  has  been  agreed 
upon  in  writing  by  the  parties  interested  and  a  copy  thereof  given  to  the 
warden. 

2508.  Notice  of  sale,  how  given. 

Sec  2508.  In  case  sales  are  made  at  auction  under  the  direction  of  the  port 
warden,  he  must  give  at  least  three  days'  notice  of  the  same  by  publication  in 
some  newspaper  published  in  the  county  where  the  survey  is  made,  describing 
the  articles  to  be  sold;  and  if  merchandise,  the  vessel  by  which  imported;  and 
if  a  wrecked  or  damaged  vessel  or  materials  of  the  same,  the  name  of  the  vessel 
and  w^here  from.  If  no  newspaper  is  published  in  the  place  Avhere  the  sale  is 
made,  then  a  written  notice  of  such  sale  must  be  j^osted  uj)  in  the  vicinit}'. 

2509.  Wardens  not  to  be  connected  with  insurance. 

Sec  2509.  No  poi-t  warden  must,  either  directly  or  indirectly,  have  any  con- 
nection with  insurers  of  this  state,  or  of  any  other  of  the  states,  or  of  foreign 
countries,  or  with  the  agents  or  re]:)resentatives  of  such  insurers,  so  far  as  his 
duties  as  port  warden  are  concerned.  He  must  not  in  any  manner  be  interested, 
directly  or  indirectly,  in  any  repairs  he  may  recommend,  nor  in  any  vessel,  cargo 
or  portion  of  cargo  he  may  be  required  to  survey. 

2510.  Fees  for  surveys  and  certificates. 

Sec.  2510.  For  each  and  eveiy  survey  the  port  warden  is  entitled  to  fifteen 

309 


2510-2521  POLITICAL  CODE. 

dollars,  to  be  paid  bj'  the  owners,  masters  or  consignees,  the  amount  not  to 
exceed  altogether  for  any  one  vessel  the  sum  of  seventy-five  dollars.  Foreign 
vessels,  not  admitted  by  treaty  on  terms  of  equality  with  Ameiican  bottoms, 
must  pay  fifty  per  cent,  advance  on  this  rate.  For  all  separate  ceiiiticates  of 
surveys  requii'ed  by  difi'ereut  consignees  he  is  entitled  to  a  fee  of  two  dollars 
and  a  half,  and  for  each  order  of  sale  he  is  entitled  to  ten  dollars. 

2511,  Penalty  for  any  one  to  act  as  such  who  is  not  a  port  warden. 

Sec  2511.  Any  person  other  than  a  port  warden,  appointed  according  to  law, 
who  performs  any  of  the  duties  of  such  officer  prescribed  in  this  article  is  liable 
to  a  penalty  of  not  less  than  five  hundred  dollars  nor  more  than  one  thousand 
dollars  for  each  olYcnse,  to  be  recovered  in  any  court  of  comj:)etent  jvirisdiction 
by  the  warden  or  board  of  port  wardens,  in  the  name  of  the  people  of  the  State 
of  California. 

ARTICLE  IX. 

SAN    FKANCISCO    HAKBOR    AND    STATE    HAEBOE    COMMISSIONERS. 

[This  entire  article,  from  section  2521  to  2554,  inclusive,  was  remodeled,  and 
the  new  section  2520  added  by  the  act  of  February  28,  1876;  Amendments 
1875-6,  32,  from  which  the  following  amendments  are  taken.  On  account  of 
the  thorough  change  made  and  the  consequent  little  light  the  original  sections 
would  throw  upon  the  amendments,  as  well  as  on  account  of  the  great  length 
of  the  original  sections,  the}-  are  omitted  from  the  notes;  and  the  inquirer 
desiring  to  consult  them  is  referred  to  the  volume  of  the  Political  Code  as 
originally'  adopted.  ] 

2520.  Appointment  of  state  harbor  commissioners. 

Sec.  2520.  As  soon  as  ma}'-  be  after  the  passage  of  this  act,  the  governor,  by 
and  with  the  consent  of  the  senate,  shall  appoint  three  state  harbor  commis- 
sioners, who  shall  hold  office,  one  for  two  years,  one  for  three  years,  and  one 
for  foiu-  years,  from  the  date  of  their  respective  commissions.  The  governor 
shall,  in  like  manner,  at  the  expiration  of  their  respective  terms,  appoint  and 
commission  their  successors,  for  a  full  term  of  four  years,  excej)ting  in  case  of 
a  vacancy  occurring  in  the  board  by  resignation,  or  otherwise,  to  fill  which  he 
shall  appoint  a  commissioner  for  the  unexpired  portion  of  the  term.  [Ne^o 
section,  approved  February  28,  1876;  Amendments  1875-6,  32;  tooh  effect  from 
passarje. 

2521.  Bonds  of  commissioners — Secretaries  and  their  duties. 

Sec  2521.  The  governor  shall  issue  commissions  to  each  member  of  the  state 
board  of  harbor  commissioners,  which  commissions  shall  take  effect  immediately 
after  such  commissioners  shall  have  filed  bonds  and  qualified,  as  in  this  article 
provided.  Each  commissioner  shall,  before  entering  upon  the  duties  of  his 
office,  and  within  fifteen  days  after  his  appointment,  give  a  bond  in  the  sum  of 
fifty  thousand  dollars,  conditioned  for  the  faithful  performance  of  his  duties, 
required  by  this  article,  which  bond  shall  be  approved  by  the  governor  and 
state  treasurer,  by  writing  indorsed  thereon,  and  tiled  in  the  office  of  secretary 
of  state.  No  bond  shall  be  required  of  the  ex  officio  members  of  the  board. 
The  commissioners  shall  not  be  sureties  for  each  other,  nor  shall  any  officer  of 
the  state  governinent,  nor  officer  or  member  of  the  legislature,  be  accepted  as 
surety  on  said  Ijonds.  The  commissioners  shall  take  and  subscribe  an  official 
oath,  which  oath  shall  l>e  attached  to  and  filed  with  said  bonds  respectively. 
The  commissioners  shall  be  known  as  the  board  of  state  harbor  commissioners; 
and,  after  being  qualified,  shall  choose,  by  ballot,  one  of  their  own  number 
president  of  the  board.  The  commissioners  shall  appoint  as  secretary  of  the 
board  some  suitable  person,  who  is  not  one  of  their  own  number,  who,  before 

310 


PUBLIC  WAYS.  2521-2522 

entering  upon  the  duties  of  his  office,  shall  give  a  bond,  with  two  or  more  sure- 
ties, in  the  sum  of  twenty  thousand  dollars,  conditioned  for  the  faithful  per- 
formance of  his  duties;  which  bond  must  be  approved  b}-  the  commissioners, 
by  writing  indorsed  thereon,  and  he  shall  also  take  and  subscribe  to  an  official 
oath,  which  oath  shall  be  attached  to  and  filed  with  his  bond  with  the  secretary 
of  state.  The  commissioners  shall  appoint  an  assistant  secretary,  who  shall 
give  a  bond  in  the  sum  of  ten  thousand  dollars,  with  two  or  more  sureties, 
conditioned  for  the  faithful  performance  of  his  duties,  which  bond  shall  be 
approved  by  the  commissioners,  in  writing  indorsed  thereon,  and  shall  also  take 
and  subscribe  an  official  oath,  which  oath  shall  be  attached  to  and  filed  with 
his  bond  with  the  secretary  of  state.  The  secretary  of  the  board  shall  keej)  the 
office  of  the  board  open  every  day,  from  nine  o'clodt  a.  m.  till  four  o'clock 
p.  M.,  Sundays  and  holidays  excepted.  He  shall  attend  the  meetings  of  the 
board,  and  record  the  names  of  all  the  commissioners  present,  and  shall  keep 
a  clear  and  distinct  record  of  all  their  jDroceedings  at  every  meeting.  He  shall 
kee])  in  suitable  books  a  record  of  all  moneys  received  and  disbursed  by  the 
commissioners,  and  of  all  agreements  and  contracts  entered  into  by  them, 
which  record  shall  be  open  to  the  inspection  of  the  public  during  the  usual 
business  hours.  The  secretary  shall  forward  to  the  controller  of  state,  as  often 
as  once  in  each  month,  a  statement  under  oath  in  the  form  of  a  balance-sheet, 
containing  a  full  exhibit  of  all  moneys  received  and  disbursed;  the  sources 
from  which  the  same  were  received,  and  the  purposes  for  which  the  same  were 
paid  out.  He  shall,  also,  in  the  first  week  in  January,  April,  July,  and 
October,  in  each  year,  file  in  the  office  of  the  secretaiy  of  state  a  repoi-t,  in  the 
form  of  a  balance-sheet  under  oath  of  the  receipts  and  disbursements  for  each 
preceding  three  months.  He  shall  keep  in  separate  books  a  record  of  all  the 
personal  propert}^  and  the  cost  of  the  same,  purchased  by  the  commissioners 
in  belialf  of  the  state,  and  the  disposition  made  of  the  same,  when  any  shall 
have  been  sold,  and  the  price  received  therefor.  He  shall  perform  such  other 
duties  pro]Derly  pertaining  to  those  of  secretary  as  may  be  required  of  him  by 
the  board.  The  assistant  secretary  shall  perform  such  service  pertaining  to 
the  duties  of  his  office  as  the  secretaiy  or  commissioners  may  require  during 
business  hours,  [Amendment,  approved  February  28, 1876;  Amendments  1875-6, 
32;  took  effect  from  passage}''^ 

2522.  Employees  and  their  duties. 

Sec.  2522.  The  commissioners  may  appoint  a  chief  engineer,  whose  duty  it 
shall  be  to  superintend  the  construction  of  all  embankments  and  sea-walls,  the 
dredging  of  slips  and  docks,  the  building  of  wharves,  piers,  quays  and  land- 
ings, thoroughfares,  and  other  necessary  structures,  upon  the  premises  and 
under  the  control  of  said  commissioners,  by  virtue  of  this  article.  The}-  may 
also,  in  their  discretion,  em2:)loy  assistant  engineers  and  draughtsmen,  who 
shall  be  under  the  control  and  subject  to  the  directions  of  the  chief  engineer, 
and  pay  a  reasonable  compensation  for  such  services.  They  may  appoint  an 
attorney-at-law,  who  shall  attend  to  the  prosecution  and  defense  of  all  suits  and 
other  matters  requiring  his  professional  services,  and  give  counsel  and  advice 
when  required  by  the  board.  They  shall  apj)oint  as  chief  wharfinger  a  compe- 
tent man,  who  must,  before  entering  u]pon  the  duties  of  his  office,  file,  in  the 
office  of  the  board,  a  bond,  with  two  or  more  sureties,  in  a  sum  sufficient  to 
cover  any  amount  of  money  that  shall  come  into  his  hands,  conditioned  for  the 
faithful  performance  of  his  duties  as  such  chief  wharfinger,  which  bond,  if  satis- 
factory, shall  be  approved  by  the  board  by  writing  indorsed  thereon.  Such 
chief  wharfinger  shall,  under  the  direction  of  the  commissioners,  furnish  to  all 

(a;  See  remarks  at  head  of  Article  IX,  ante,  2520. 

311 


2522  POLITICAL  CODE. 

ship-masters,  cousignees,  and  pilots  of  all  sliips  and  other  water  craft,  a  piinted 
copy  of  the  harbor  regulations  of  the  harbor  of  San  Francisco,  which  shall 
contain  the  rates  of  dockage,  wharfage,  and  tolls,  and  such  other  matters  as 
said  commissioners  shall  deem  proper  to  furnish  to  ship-masters,  consignees, 
and  pilots,  to  give  them  a  correct  knowledge  of  the  regulations  of  said  harbor; 
such  pi'inted  copies  of  harbor  regulations  to  be  furnished  to  said  chief  wharf- 
inger by  said  commissioners.  The  chief  wharfinger  shall  also,  subject  to  the 
directions  of  the  board,  superintend  and  direct  the  removal  of  all  incumbrances 
and  obstnactious  from  the  docks,  slij^s,  Avharves,  landings,  and  thoroughfares, 
and  shall  have,  subject  to  the  directions  of  the  commissioners,  as  aforesaid, 
authority  to  station,  berth,  and  regulate  the  position  of  all  classes  of  water 
craft  navigating  said  harbor,  and  to  remove,  from  time  to  time,  and  from  place 
to  place,  such  water  craft  as  the  wants  of  commerce  and  good  order  may 
require;  provided,  however,  that  said  chief  wharfinger  shall  have  no  control 
over  such  portions  of  the  water-front  of  said  city  and  county  as  are  held  by 
grantees  or  lessees,  or  their  assigns,  under  valid  leases.  Said  commissioners 
may  also  appoint  an  assistant  chief  wharfiuger,  who  shall  perform  such  duties 
pertaining  to  his  office  as  shall  be  required  of  him  by  said  commissioners,  and 
by  said  chief  wharfinger.  Said  assistant  chief  wharfinger  must,  before  entering 
ujjon  the  duties  of  his  office,  file,  in  the  office  of  the  board,  a  bond,  with  two 
or  more  sureties,  in  a  sum  sufficient  to  cover  all  moneys  that  may  come  into  his 
hands,  conditioned  for  the  faithful  joerformance  of  his  duties  as  assistant  chief 
wharfinger,  which  bond  shall  be  approved  by  the  board  by  writing  indorsed 
thereon.  Said  commissioners  shall  also  appoint  a  suflieient  number  of  persons 
wharfingers,  to  collect  the  revenue  arising  from  dockage,  wharfage,  cranage, 
rents,  and  tolls,  by  authority  of  this  article,  and  may  also  appoint  a  sufficient 
number  of  persons  toll  collectors,  to  collect  the  tolls  authorized  to  be  collected 
by  vii'tue  of  this  article;  each  of  which  wharfingers  and  toll  collectors  must, 
before  entering  upon  the  duties  of  their  respective  offices,  file,  in  the  office  of 
the  board,  a  bond,  with  two  or  more  sureties,  in  a  sum  sufficient  to  cover  any 
moneys  that  may  come  into  their  hands,  conditioned  for  the  faithful  perfoiin- 
ance  of  their  duties  as  such  wharfingers  and  toll  collectors,  which  bonds  shall 
be  approved  b}'  said  commisioners  by  writing  indorsed  thereon.  Every  wharf- 
inger and  toll  collector  appointed  by  authority  of  this  article  must  make  and 
subscribe  to  an  official  oath,  which  oath  must  be  attached  to  and  filed  with  his 
bond.  The  secretary  of  the  board  is  hereby  authorized  to  atlminister  to  each 
wharfinger  and  toll  collector  the  oaths  required  by  this  article  to  be  made  by 
such  wharfingers  and  toll  collectors.  Each  wharfinger  and  toll  collector  shall 
keejD,  in  suitable  books  to  be  furnished  by  the  commissioners,  an  account  of  all 
moneys  by  him  collected,  which  books  shall  be  ojjeu  to  the  inspection  of  the 
public  at  all  reasonable  times,  and  such  wharfingers  and  toll  collectors  shall  i)ay 
to  the  commissioners  all  the  moneys  collected  by  them,  at  least  once  in  each 
week,  and  as  much  oftener  as  the  commissioners  shall  require.  The  wharfingers 
appointed  by  authority  of  this  article  shall  have  autliorit}^  respectively,  and 
they  are  hereby  authorized,  to  require  the  cajitain,  consignees,  agents,  or  owners 
of  any  water  craft,  or  the  OAvners,  agents,  )nanagers,  or  conductors  of  any  railroad 
car,  or  train  of  cars,  or  the  consignees  of  an}-  goods,  wares,  or  merchandise,  or 
animals,  to  be  landed,  loaded,  or  unloaded  upon  the  premises  described  in  this 
article,  on  or  before  the  landing,  loading,  or  unloading  thereof,  to  furnish  to 
any  such  wharfingers,  when  rccpiired  to  do  so,  the  number  of  tojis,  or  number 
of  hundred,  or  number  of  feet,  or  number  of  cords,  or  number  of  animals,  any 
such  water  craft,  or  car,  or  train  of  cars,  contains;  and  it  shall  be  the  duty  of 
every  captain,  consignee,  agent,  or  owner  of  any  water  craft,  or  the  owners, 
agents,  managers,  or  conducttjrs  of  every  railroad  car,  or  train  of  cars,  the  con- 

312 


PUBLIC  WAYS.  2522-2524 

sig-nee  of  any  goods,  wares,  merchandise,  or  animals,  upon  any  railroad  car,  or 
train  of  cars,  which  goods,  wares,  merchandise,  or  animals  are  to  be  landed, 
loaded,  or  unloaded  within  or  upon  the  joremises  described  in  this  article,  to 
furnish  to  such  wharfingers  a  correct  account  of  the  number  of  tons,  or  the 
number  of  hundred,  or  number  of  feet  of  goods,  wares,  or  merchandise,  or 
number  of  animals,  when  required  to  do  so  by  any  wharfinger;  and  every  cap- 
tain, consignee,  agent,  or  owner  of  any  water  craft,  or  any  owner,  agent, 
manager,  or  conductor  of  anj'  railroad  car,  or  train  of  cars,  or  any  consignee  of 
any  goods,  wares,  merchandise,  or  animals,  upon  any  railroad  car,  or  train  of 
railroad  cars,  who  shall  neglect  or  refuse  to  furnish  the  information  required  to 
be  given  to  the  wharfingers  by  this  section,  or  who  shall,  designedly,  give  false 
infonnation,  shall  be  guilty  of  a  misdemeanor,  and,  upon  conviction  thereof 
before  anj^  court  of  competent  jurisdiction,  shall  be  fined  not  less  than  twenty 
nor  more  than  one  hundred  dollars,  or  by  imprisonment  in  the  jail  of  the  city 
and  county  of  San  Francisco  not  less  than  ten  nor  more  than  fifty  days,  or  by 
both  sixch  fine  and  imprisonment.  [Amendment,  approved  February  28,  1876; 
Amendments  1875-G,  32;  took  e (feet  from  passage}'-^ 

2523.  Actions  for  property ,  moneys,  and  to  remove  obstructions. 

Sec.  2523.  The  commissioners  may  institute  and  prosecute  to  final  judgment 
actions  in  the  name  of  the  peoj^le  of  the  State  of  California  for  the  jDossession 
of  any  portion  of  the  premises  described  in  this  article,  situate  between  the 
inshore  line  or  line  nearest  the  mainland  and  the  line  off-shore,  six  hundred 
and  fifty  feet  therefrom,  and  parallel  therewith,  or  for  the  annulling  of  any 
lease  or  contract  entered  into  by  the  commissioners  in  behalf  of  the  state  by 
virtue  of  any  general  or  special  law,  or  for  the  collection  of  any  money  due  or 
that  may  become  due  the  state  by  authority  of  this  article;  and  the  commis- 
sioners may  also  institute  and  prosecute  to  final  judgment  actions  for  the  re- 
moval of  all  unlawful  obstructions  in  or  upon  said  premises,  or  for  the  removal 
of  all  unlawful  obstructions  in  or  upon  the  streets  through  the  centre  of  which 
the  inshore  line  or  line  nearest  the  mainland,  bounding  said  premises,  runs. 
They  may  also  remove  any  unlawful  obstructions  thereon  after  the  owner,  pos- 
sessor, or  occupant  of  such  obstructions  shall  have  five  days'  notice,  in  writing, 
to  remove  the  same,  either  served  on  such  owner,  possessor,  or  occupant,  or 
posted  upon  said  obstruction  by  the  chief  wharfinger,  assistant  wharfinger,  or 
wharfinger.  [Amendment,  approved  February  28,  1876;  Amendments  1875-6,  32; 
took  effect  from  passage.'-"'' 

2524,  Water  front  of  San  Francisco  in  charge  of  commissioner§ — Duties  of  com- 

missioners. 
Sec.  2524.  The  commissioners  shall  have  possession  and  control  of  that  por- 
tion of  the  bay  of  San  Francisco,  together  with  the  imj^rovements,  rights,  j^i'ivi- 
leges,  easements,  and  appurtenances  connected  therewith,  or  in  anywise  apper- 
taining thereto,  for  the  purposes  in  this  article  provided  (excepting  such  parcels 
thereof  as  are  held  by  the  lessees,  or  their  assigns,  of  valid  leases,  which  j^arcels 
so  held  it  is  hereby  made  the  duty  of  the  commissioners  to  take  jpossession  of, 
together  with  the  imi^rovements  thereon,  as  soon  as  said  leases  terminate,  and 
also  to  see  that  the  lessees,  or  their  successors  or  assigns,  do  not  exercise  rights 
and  privileges  that  are  not  conferred  by  said  leases),  bounded  as  follows,  to  wit: 
Commencing  at  the  point  where  the  easterly  line  of  the  Presidio  reservation  in- 
tersects the  water-line  front,  as  established  by  the  board  of  state  tide  land  com- 
missioners; thence  easterly  along  said  water-line  front  to  the  centre  of  Webster 
street;  thence  southerly  along  the  centre  of  Webster  street  to  the  centre  of 
Lewis  street;  thence  easterly  along  the  centre  of  Lewis  street  to  the  centre  of 

(a)  See  remarks  at  head  of  Article  IX,  ante,  2520. 

813 


2524  POLITICAL  CODE. 

Polk  street;  thence  southerly  along  the  centre  of  Polk  street  to  the  centre  of 
Touqiiin  street;  thence  easterly  along  the  centre  of  Tonquin  street  to  the  centre 
of  Larkiu  street;  thence  southerly  along  the  centre  of  Larkin  street  to  the 
centre  of  Jefferson  street;  thence  easterly  along  the  centre  of  Jefferson  street 
to  the  centre  of  Powell  street;  thence  southerly  along  the  centre  of  Powell 
street  to  the  centre  of  Beach  street;  thence  easterly  along  the  centre  of  Beach 
street  to  the  centre  of  Dupout  street;  thence  southerly  along  the  centre  of 
Dupont  street  to  the  centre  of  North  Point  street;  thence  easterly  along  the 
centre  of  North  Point  street  to  the  centre  of  Kearny  street;  thence  southerly 
along  the  centre  of  Kearny  street  to  the  centre  of  Francisco  street;  thence  east- 
erly along  the  centre  of  Francisco  street  to  the  centre  of  Montgomery  street; 
thence  along  the  centre  of  Montgomery  street  to  the  centre  of  Chestnut  street; 
thence  easterly  along  the  centre  of  Chestnut  street  to  the  centre  of  Sansome 
street;  thence  southerly  along  the  centre  of  Sansome  street  to  the  centre  of 
Lomhartl  street;  thence  easterly  along  the  centre  of  Lombard  street  to  the 
centre  of  Battery  street;  thence  southerly  along  the  centre  of  Battery  street  to 
the  centre  of  Greenwich  street;  thence  easterly  along  the  centre  of  Greenwich 
street  to  the  centre  of  Front  street;  thence  southerly  along  the  centre  of  Front 
street  to  the  centre  of  Vallejo  street;  thence  easterly  along  the  centre  of  Vallejo 
street  to  the  centre  of  Davis  street ;  thence  southerly  along  the  centre  of  Davis  street 
to  the  centre  of  Pacific  street;  thence  easterly  along  the  centre  of  Pacific  street  to 
the  centre  of  East  .street;  thence  southerly  along  the  centre  of  East  street  to  the 
centre  of  Folsom  street;  thence  westerly  along  the  centre  of  Folsom  street  to  the 
centre  of  Steuart  street;  thence  southerly  along  the  centre  of  Steuart  street  to 
the  centre  of  Hai'rison  street;  thence  southerly  on  a  direct  line  w4th  said  Steuart 
street,  two  hundred  and  fifty-three  feet  nine  inches,  to  the  centre  of  a  street  the 
name  of  which  is  not  on  a  map;  thence  at  right  angles,  westerly,  along  the 
centre  of  said  street  to  the  centre  of  Spear  street;  thence  southerly  along  the 
centre  of  Spear  street  to  the  centre  of  Bryant  street;  thence  westerly  along  the 
centre  of  Bryant  street  to  the  centre  of  Beale  street;  thence  southerly  along  the 
centre  of  Beale  street  to  the  centre  of  Brannan  street;  thence  westerly  along 
the  centre  of  Brannan  street  to  the  centre  of  First  street;  thence  southerly  along 
the  centre  of  First  street  to  the  centre  of  Townsend  street;  thence  westerly 
along  the  centre  of  Townsend  street  five  hundred  and  fifty  feet,  to  the  centre  of 
a  street  the  name  of  which  is  not  on  a  map;  thence  at  right  angles  southerly 
along  the  centre  of  said  street  to  the  centre  of  King  street;  thence  along  the 
centre  of  King  street  to  the  centre  of  Second  street;  thence  southerly  along  the 
centre  of  Second  street  to  the  centre  of  Berry  street;  thence  westerly  along  the 
centre  of  Berry  street  to  the  centre  of  Third  street;  thence  southerly  along  the 
centre  of  Third  street  to  the  northerly  line  of  Channel  street;  thence  westerly 
along  the  last-mentioned  line  to  the  easterly  line  of  Fifth  street;  thence  south- 
erly along  said  last-mentioned  line  to  the  southerly  line  of  said  Channel  street; 
thence  easterly  along  said  mentioned  line  to  the  centre  of  Keiitucky  street; 
thence  southerly  along  the  centre  of  Kentucky  street  to  the  centre  of  Fourth 
street;  thence  along  the  centre  of  Fourth  street  to  the  centre  of  Louisiana  street; 
thence  southerly  aloiig  the  centre  of  Louisiana  street  to  the  centre  of  El  Dorado 
street;  thence  along  the  centre  of  El  Dorado  street  to  the  centre  of  Illinois 
street;  thence  southerly  along  the  centre  of  Illinois  street  to  the  centre  of  So- 
lano street;  thence  easterly  along  the  centre  of  Solano  street  to  the  water-front 
line  established  by  the  board  of  state  tide  land  commissioners;  thence  south- 
erly along  said  last-mentioned  line  to  the  centre  of  Tulare  street;  tlience 
westerly  along  the  centre  of  Tulare  street  to  the  centre  of  Texas  street;  thence 
southerly  along  the  centre  of  Texas  street  to  the  centre  of  Islais  street;  thence 
easterly  along  the  centre  of  Islais  street  to  the  centre  of  Water-front  street; 

314 


PUBLIC  WxYYS.  2524 

thence  southerly  along  the  centre  of  Water-front  street  to  the  centre  of  India 
street;  thence  westerly,  southerly,  and  easterly,  along  the  centre  of  said  India 
street  to  the  centre  of  Water-front  street,  to  the  centre  of  China  street;  thence 
westerly  along  the  centre  of  China  street  to  the  centre  of  Third  avenue;  thence 
southerly  along  the  centre  of  Third  avenue  to  the  northerly  line  of  the  property 
of  the  California  dry  dock  company;  thence  easterly  along  said  last-mentioned 
line  to  the  water  front  estal)lished  by  the  board  of  state  tide  land  commissioners; 
thence  southerly  along  and  around  said  dry  dock  company's  land  to  the  south- 
easterly corner  thereof;  thence  westerly  along  the  line  of  said  land  to  the 
centre  of  W^ater-front  street;  thence  southerly  along  the  centre  of  Water- 
front street  to  the  centre  of  Nineteenth  avenue;  thence  westerly  along  the 
centre  of  Nineteenth  avenue  to  the  centre  of  Dock  street;  thence  southerly 
along  the  line  of  Dock  street  to  the  centre  of  Twenty-third  avenue;  thence  west- 
erly along  the  centre  of  Twenty-third  avenue  to  the  centre  of  H  street;  thence 
southerly  along  the  centre  of  H  street  to  the  centre  of  Twenty-fourth  avenue; 
thence  easterly  along  the  centre  of  Twenty -fourth  avenue  to  the  centre  of  Water- 
front street,  and  thence  southerly  along  the  centre  of  said  Water-front  street  to 
the  southern  boundary  of  the  county  of  San  Francisco;  thence  along  the 
southerly,  easterly,  and  northerly  boundary  lines  of  said  county  to  a  point  due 
north  of  the  j)lace  of  commencement,  and  thence  south  to  the  place  of  com- 
mencement. But  no  harbor  embankment  or  sea-wall  shall  be  constructed 
outside  of  the  following  named  points  and  lines,  to  wit:  Commencing  at 
the  point  where  the  eastern  boundary  line  of  the  Presidio  reservation,  ex- 
tended in  a  northerly  direction,  intersects  the  three  fathom  contour  line, 
shown  upon  the  charts  of  the  United  States  survey,  and  running  thence 
in  an  easterly  and  southerly  direction  upon  straight  or  curved  lines,  in 
such  manner  as  to  approach  as  near  as  practicable  the  extreme  outer  pro- 
jections of  the  water-line  front  as  described  in  an  act  to  provide  for  the  dis- 
position of  certain  proj^erty  of  the  State  of  California,  .passed  March  twenty- 
sixth,  A.  D.  eighteen  hundred  and  fifty-one,  to  a  point  at  or  near  the  intersection 
of  Second  and  Berry  streets;  thence  continuing  southerly,  upon  straight  or 
curved  lines,  in  such  a  manner  as  to  approach  as  near  as  practicable  the  extreme 
outer  jDrojections  of  the  water-line  front,  as  established  b}^  the  board  of  state 
tide  land  commissioners,  to  the  southern  boundary  of  said  city  and  county  of 
San  Francisco.  And  said  commissioners,  in  addition  to  a  general  control  over 
said  premises,  shall  have  authority  to  use,  for  loading  and  landing  merchan- 
dise, with  a  right  to  collect  dockage,  wharfage  and  tolls  thereon,  such  portion 
of  the  streets  of  the  city  and  county  of  San  Francisco  ending  or  fronting  upon 
the  waters  of  said  bay  as  may  be  used  for  such  purposes  without  obstructing  the 
same  as  thoroughfares,  and  avithority  to  rent  an  oflSce  in  the  city  and  county  of 
San  Francisco,  between  Montgomery,  Market,  and  Pacific  streets  and  the  city 
front;  and  jDurchase  from  time  to  time  suitable  books  for  the  records  of  the 
secretary  and  accounts  of  the  wharfingers,  together  with  such  stationery  as 
may  be  required  by  the  board,  and  to  fix  and  regulate  from  time  to  time  the 
rates  of  dockage,  wharfage,  cranage,  tolls,  and  rents,  and  collect  such  an 
amount  of  revenue  therefrom  as  will  enable  the  commissioners  to  perform 
the  duties  required  of  them  by  authority  of  this  article.  And  the  com- 
missioners and  mayor  of  San  Francisco  may  so  modify  and  establish  such 
rates  of  dockage  and  wharfage  as  will  produce  a  revenue  not  to  exceed  in 
amount  the  moneys  collected  in  the  year  eighteen  hundred  and  seventy-five, 
collecting  as  near  as  possible  equal  amounts  from  dockage  and  wharfage.  When 
such  modification  has  been  made,  the  collection  of  tolls  must  be  abolished,  and 
the  toll  collectors  discharged.  The  commissioners  shall  construct  such  number 
of  wharves   as  the  wants  of  commerce  shall   require,  and   shall  locate   such 

315 


2524  POLITICAL  CODE. 

^vhai-ves,  at  such  points  ami  upon  such  lines,  as  the  board  may  deem  most 
suitable  for  the  best  interest  of  commerce,  and  shall  repair  and  maintain  all  the 
wharves,  piers,  quays,  landings,  and  thoroughfares  the  wants  of  commerce  may- 
require,  and  generally  to  erect  all  such  improvements  as  may  be  nefcessaiy  for 
the  safe  lauding,  loading,  and  unloading,  and  protection  of  all  classes  of  mer- 
chandise, and  for  the  safety  and  convenience  of  passengers  passing  into  and 
out  of  the  city  and  county  of  San  Francisco  by  water.  But  no  wharf  shall  be 
extended  into  the  bay  more  than  six  hundred  feet  beyond  the  inside  line,  or 
line  nearest  the  shore  of  the  city  and  county  of  San  Francisco,  described  in 
this  article,  or  more  than  six  hundred  feet  beyond  the  permanent  water-front 
line  when  established  under  the  jiroA-isions  of  this  article,  nor  shall  any  such 
wharf  be  constructed  upon  such  place  or  line  as  will  cause  any  slip  or  dock  to 
be  less  than  one  hundred  and  thirty-six  feet  wide  at  the  most  narrow  point 
between  the  wharves.  "When  they  determine  that  a  new  wharf  shall  be  erected, 
or  any  other  necessary  improvement  constructed  or  repairs  made,  or  dredging 
machines,  scows,  steam  tugs,  and  any  necessarj^  machinery,  the  cost  of  which 
shall  exceed  three  thousand  dollars,  they  shall  advertise  for  sealed  proposals, 
for  a  period  of  not  less  than  ten  days,  in  one  or  more  of  the  daily  newspapers 
in  the  city  and  county  of  San  Francisco.  Every  proposal  shall  be  accompanied 
by  a  certified  check  for  an  amount  equal  to  five  per  cent,  of  the  amount  of  such 
proi:)Osal,  such  check  to  be  made  payable  to  the  order  of  the  secretary  of  said 
board,  conditioned  if  the  proposal  is  accepted  and  the  contract  awarded,  and  if 
the  bidder  shall  fail  or  neglect  to  execute  the  contract  and  give  the  bond  re- 
quired within  six  days  after  the  award  is  made,  in  that  case  said  sum  mentioned 
in  said  check  shall  be  i^aidinto  the  state  treasury  b}'  said  secretary  as  liquidated 
damages  for  such  failure  and  neglect  as  a  portion  of  San  Francisco  harbor 
improvement  fund.  Such  advertisement  shall  contain  a  general  description  of 
the  work  to  be  done,  the  materials  to  be  used,  the  j^lace  where  to  be  used,  and 
must  refer  to  specifications,  which  must  contain  a  full  and  accurate  description 
of  the  work  to  be  joerformed,  the  material  to  be  used,  and  where  to  be  used, 
which  sj^ecifications  shall  be  kept  in  the  office  of  the  secretary  of  the  board  in 
such  manner  that  all  persons  may  insj^ect  the  same  during  the  usual  business 
hours  of  all  days  except  Sundays  and  holidays.  On  a  day  named  in  the  adver- 
tisement, the  commissioners  shall  oi)en  the  bids  in  the  presence  of  such  bidders 
as  are  present,  and  award  the  contract  to  the  lowest  bidder  who  shall  furnish 
sufficient  svu'eties  to  guarantee  the  performance  of  the  work.  If,  in  the  opinion 
of  the  commissioners,  the  bids  are  too  high,  they  may  reject  them  and  adver- 
tise anew  in  Hke  manner  as  before.  If,  in  the  opinion  of  the  commissioners, 
the  second  bids  are  too  high,  they  may  reject  them  likewise,  and  enter  into 
contract  with  responsible  parties  without  giving  further  notice.  Any  contract 
entered  into  without  giving  public  notice  and  receiving  bids,  must  be  at  least 
ten  per  cent,  lower  than  the  lowest  rejected  bid.  The  board  may  construct 
such  harbor,  endjankment,  or  sea-wall,  as  shall  be  necessary  to  protect  the 
harbor  of  San  Francisco,  and  dredge  such  number  of  slips  and  docks  as  the 
commerce  of  the  port  of  San  Francisco  may  require,  to  a  depth  that  will  admit 
of  the  easy  and  free  ingress  and  egress  of  all  classes  of  water  craft  that  load 
and  discharge  cargoes  at  the  wharves,  piers,  quays,  landings,  and  thoroughfares 
in  the  harbor  of  San  Francisco;  to  jjerform  which  dredging  the  board  of  state 
harbor  commissioners  are  hereby  authorized  and  empowered  to  purchase  or 
construct  dredging  machines,  scows,  steam  tugs,  and  the  necessary  machinery, 
and  enii)](n'  men  for  operatiiig  the  same.  "When  any  portion  of  the  premises 
desciil^ed  in  this  article  shall  be  dredged,  the  sand,  mud,  or  other  substance 
shall  be  dei^osited  in  a  place  designated  by  the  board  in  not  less  than  fifteen 
fathoms  of  water.     All  classes  of  water  craft  that  uses  or  makes  fast  to  any 

316 


PUBLIC  WAYS.  2524 

■\vliarf,  i:»ier,  quay,  landing,  or  thoroughfare,  and  lands  npor  or  loads  therefrom 
any  goods,  wares,  or  merchandise,  shall  be  liable,  and  must  pay  to  the  com- 
missioners such  rates  of  dockage  as  shall  be  fixed  by  authority  of  this  article; 
and  all  such  water  craft  as  shall  discharge  or  receive  any  goods,  wares,  or 
merchandise,  while  moored  in  any  slip,  dock,  or  basin,  within  the  jurisdiction 
of  the  commissioners,  shall  pay  one  half  the  regular  rates  of  dockage.  Any 
water  craft  that  shall  leave  any  wharf,  pier,  quay,  landing,  thoroughfare,  slip, 
dock,  or  basin,  unless  forced  to  do  so  by  stress  of  weather,  without  first  paying 
the  dockage  due  from  such  vessel,  shall  be  liable  to  pay  double  the  regular 
rates.  The  charge  for  wharfage  and  tolls  shall  be  a  lien  upon  all  goods,  wares, 
and  merchandise  landed  upon  any  of  the  wharves,  piers,  quays,  landings,  or 
thoroughfares,  upon  the  premises  described  in  this  article;  and  the  com- 
missioners, their  agents  or  lessees,  may  hold  possession  of  any  such  goods, 
wares,  or  merchandise,  so  landed  as  aforesaid,  to  secure  the  payment  of  such 
wharfage  and  tolls;  and  for  the  purpose  of  such  lien,  are  deemed  to  have 
jiossession  of  such  goods,  wares,  and  merchandise,  so  landed,  until  such 
charges  for  wharfage  and  tolls  are  paid.  The  commissioners  shall  have  power 
to  make  reasonable  rules  and  regulations  concerning  the  control  and  manage- 
ment of  the  property  of  the  state,  which  is  intrusted  to  them  by  virtue  of 
this  article,  and  said  commissioners  are  hereby  authorized  and  required  to  make 
without  delay,  and  from  time  to  time,  and  publish  not  less  than  thirty  days, 
in  a  daily  newspajDcr  of  general  circulation,  published  in  the  city  and  county 
of  San  Francisco,  all  needful  rules  and  regulations,  not  inconsistent  with  the 
laws  of  the  state  or  of  the  United  States,  in  relation  to  the  moving  and  anchor- 
ing of  vessels  in  said  harbor,  providing  and  maintaining  free,  open  and  unob- 
structed passage-ways  for  steam  ferry-boats  and  other  steamers  navigating  the 
waters  of  the  bay  of  San  Francisco  and  the  fresh-water  tributaries  of  said  bay, 
so  that  such  steamers  can  conveniently  make  their  trips  without  impediment 
from  vessels  at  anchor  or  other  obstacles.  And  said  commissioners  may  also 
make  all  needful  rules  and  regulations  governing  the  removal  of  such  vessels 
from  the  wharves  and  other  landings,  and  from  slips  and  docks,  as  are  not 
engaged  in  receiving  or  discharging  cargo,  prescribing  the  time  duriug  which 
goods,  wares,  and  merchandise,  landed  upon  any  wharf,  pier,  quay,  landing  or 
thoroughfare,  shall  be  permitted  to  remain  thereon,  and  may  divide  the  same 
into  several  classes,  and  may,  by  such  rules  and  regulations,  provide  that  in 
case  any  such  goods,  wares,  or  merchandise  remain  upon  any  wharf,  pier,  quay, 
landing,  or  thoroughfare  beyond  the  term  so  prescribed,  the  respective  wharf- 
inger may,  under  the  order  of  the  commissioners,  remove  and  deposit  the  same 
in  a  suitable  i^lace,  at  the  charge,  risk,  and  expense  of  the  owner  thereof. 
When  any  goods,  wares,  or  merchandise  shall  have  remained  upon  any  wharf, 
pier,  quay,  landing,  or  thoroughfare,  more  than  twenty-four  hours,  the  commis- 
sioners may,  in  their  discretion,  charge  such  additional  rates  for  each  subse- 
quent day  as  in  their  opinion  is  just  and  equitable.  The  commissioners  may, 
in  their  discretion,  set  apart  and  assign  for  the  exclusive  use  of  the  water  craft 
used  by  the  officers  of  the  federal  government  such  convenient  and  safe  landings 
as  such  officers  may  require,  together  with  suitable  premises  near  such  landings 
as  may  be  set  apart  and  assigned  for  their  use,  upon  which  premises  such 
officers  may  cause  to  be  erected  offices  and  store-houses  to  suit  their  conve- 
nience, and  the  commissioners  shall  charge  a  reasonable  compensation  per 
month  for  the  use  of  such  landings  and  office  and  store-house  premises;  set 
apart  and  assign  a  suitable  and  proper  locality  for  the  use  of  the  harbor  police 
of  the  city  and  county  of  San  Francisco;  and  also  a  suitable  place  for  a  boat- 
house  station  for  the  exclusive  use  of  the  quarantine  and  health  officers  of  said 
city  and  county,  without  compensation;  set  apart  and  assign  for  the  exclusive 

317 


2524  POLITICAL  CODE. 

use  of  steam  ferry-boats  suitable  slips,  in  which  such  structures  may  be  erected 
as  will  secm*e  the  safe  and  convenient  landing  of  passengers,  and  safe  landing 
and  deliveiT  of  freight;  set  apart  and  assign  suitable  wharves,  berths  or  land- 
ings for  the  exclusive  use  of  sea-going  steamers,  to  construct  suitable  sheds, 
gates,  and  other  temporary  structures  as  may  be  necessaiy  for  the  safe  and 
convenient  lauding  of  passengers,  and  safe  landing  and  delivery  of  freight;  and 
set  apart  and  assign  for  the  sole  and  exclusive  use  of  the  fishermen  of  the  city 
and  county  of  San  Francisco  such  place  or  places  as  the  said  commissioners 
shall  deem  proper,  sufficient,  and  adapted  for  the  requirements  and  necessities 
of  said  fishermen;  provided,  the  premises  so  set  apart  by  said  commissioners 
shall  be  used  onlj-  for  the  legitimate  business  of  said  fishermen,  and  for  no 
other  purpose ;  and  provided,  said  commissioners  shall  not  charge  therefor 
more  than  the  following  rates:  for  boats  over  twenty-two  feet  and  under  forty 
feet  long,  one  dollar  per  week;  for  boats  from  sixteen  to  twenty-two  feet  long, 
seventy-five  cents  per  week,  and  for  all  boats  less  than  sixteen  feet  long,  twenty- 
five  cents  per  week.  The  commissioners  may  assign  suitable  places  for  the 
landing  of  horses,  cattle,  sheep,  and  swine,  and  when  such  places  have  been 
assigned  it  shall  be  a  misdemeanor  for  a  commander  of  any  water  cfait  to  land 
any  greater  number  than  ten  at  any  one  time  from  any  water  craft  at  any  other 
place.  The  commissioners  may  set  apart  for  the  uses  and  purposes  of  dry 
docks  and  marine  railways,  such  portions  of  the  water  front  northwesterly  of 
the  northerly  end  of  Kearny  street,  and  southerly  of  the  easterly  end  of  Solano 
street,  as  the  wants  of  commerce  may  require,  and  lease  the  same  for  a  period 
not  to  exceed  ten  years.  "When  the  commissioners  lease  premises  for  marine 
railways  and  dry  dock  purposes,  as  provided  in  this  section,  they  shall  advertise 
for  sealed  proposals,  for  a  period  of  not  less  than  ten  nor  more  than  twenty 
days,  in  one  of  the  daily  newspapers  of  the  largest  circulation,  printed  in  the 
city  and  county  of  San  Francisco,  which  advertisement  shall  contain  a  descrip- 
tion of  the  premises  to  be  leased.  On  the  day  named  in  the  advertisement,  the 
commissioners  shall  open  the  bids  in  the  presence  of  such  of  the  bidders  as  are 
present,  and  award  the  premises  to  be  leased  to  the  highest  responsible  bidder 
that  shall  furnish  sufficient  sureties  to  guarantee  the  payment  of  the  rent,  and 
may  negotiate  for  and  accept  and  cancel  any  lease  of  any  portion  of  the  prem- 
ises described  in  this  article,  and  pay  a  reasonable  compensation  for  any 
structures  upon  any  such  leased  premises  as  in  the  opinion  of  the  board  and 
engineer  may  be  useful  for  such  commercial  purposes  as  this  article  is  intended 
to  promote.  No  person  or  companj'^  shall,  without  the  consent  of  the  board  of 
state  harbor  commissioners,  land  or  remove  any  goods,  wares,  or  merchandise, 
or  other  thing,  upon  or  from  any  wharf,  pier,  quay,  landing,  or  thoroughfare, 
situate  upoii  the  premises  described  in  this  article,  unless  authorized  to  do  so  by 
virtue  of  valid  lease  ;  nor  shall  any  person  collect  dockage,  wharfage,  cranage, 
rent,  or  toll,  within  the  boundaries  of  the  premises  described  in  this  article,  ex- 
cept by  virtue  of  valid  leases,  without  first  obtaining  permission  to  do  so  from  said 
commissioners ;  nor  shall  an}'  person  or  company'  place  or  cause  to  be  placed 
any  obsti'uctious  in  that  portion  of  the  bay  of  San  Francisco,  described  in  this 
article,  nor  upon  any  Avharf,  pier,  quay,  landing,  or  thoroughfare,  without  the 
consent  of  the  board.  "Whenever  any  wharf,  pier,  quay,  landing,  or  thorough- 
fare, in  the  harbor  of  San  Francisco,  shall  be  incumbered,  or  their  free  use 
interfered  with,  by  goods,  Avares,  merchandise,  or  other  substance,  whether  loose 
or  built  upon,  or  fixed  to  any  such  wharf,  pier,  quay,  lauding,  or  thorough- 
fare, it  shall  be  the  duty  of  the  commissioners  to  notify,  in  writing  (which 
notice  may  be  sei'ved  by  a  wharfinger  or  by  the  secretar}-  or  assistant  seci*etary 
of  the  board),  the  owner,  agent,  occupant,  or  person,  placing  or  keeping  such 
obstructions  thereon,  to  remove  the  same  within  twenty-four  hours  after  the 

318 


PUBLIC  WAYS.  2524-2526 

serving  of  such  notice,  and  in  case  of  failure  to  comply  with  such  notice,  and 
remove  such  obstructions,  the  owuer,  agent,  occupant,  or  person,  so  notified, 
shall  be  liable  to  pay  the  commissionei's  the  sum  of  twenty -five  dollars  for  each 
and  every  day  during  which  such  obstruction  shall  remain  upon  any  such  wharf, 
pier,  quay,  landing,  or  thoroughfare;  and  the  commissioners  shall  have  power, 
in  their  discretion,  to  remove  any  such  incumbering  substance,  and  store  the 
same  in  any  suitable,  convenient,  and  safe  place,  and  a  sum  equal  to  the 
amount  of  the  expenses  of  the  removal,  together  with  all  other  necessary 
charges,  shall  be  paid  by  the  owner  of  such  incumbering  substance  to  the  com- 
missioners, and  such  sum  and  necessary  charges  shall  be  a  lien  on  such  sub- 
stance until  paid.  The  rates  of  dockage,  wharfage,  and  tolls,  shall  not  exceed 
those  established  by  the  board  of  state  harbor  commissioners  July  first,  eighteen 
hundred  and  seventy-four,  and  dockage  shall  not  be  collected  on  au}^  vessel 
lying  at  anchor  outside  of  dock,  wharf,  or  slip.  [Ainendment,  approved  February 
28,  1876;  Amendments  1^1  b-Q,  32;  took  effect  from  pamage!-''^ 

2525.  Extension  of  streets  along  the  icater  front. 

Sec.  2525.  The  board  of  state  harbor  commissioners  are  authorized  to  extend 
any  of  the  streets  lying  along  the  water  front  of  said  city  and  county,  to  a 
width  not  exceeding  one  hundred  and  fifty  feet,  where  they  have  not  been 
already  so  extended.  The  outer  half  of  such  streets  must  be  constructed  or 
built  and  maintained  in  good  repair  by  the  state  harbor  commissioners,  or 
parties  holding  under  them,  and  may  be  used  as  a  landing-place  or  pier,  on 
which  dockage,  wharfage,  and  tolls  may  be  collected;  and  until  such  extensions 
are  made,  the  commissioners  may  have  and  use  as  a  landing-place,  with  full 
power  to  collect  dockage,  wharfage,  and  tolls  thereon,  so  much  of  the  streets 
now  fronting  upon  the  water  front  as  may  be  used  for  such  purpose  without 
obstructing  the  same  as  a  thoroughfare.  The  inner  half  of  such  streets  shall 
be  constructed  and  maintained  in  good  repair  by  the  owners  of  the  lots  abut- 
ting thereon  and  the  city  and  county  of  San  Francisco.  The  commissioners 
are  authorized  to  construct  across  the  outer  half  of  said  streets  an  extension  of 
the  sewers  of  the  said  city  and  county;  if  it  be  necessary  to  take  any  land  for 
the  purpose  of  widening  any  such  street,  the  commissioners  are  hereby  author- 
ized to  institute  and  prosecute  to  final  determination  proceedings  therefor  in 
conformity  with  the  provisions  of  Part  III,  Title  VII  of  the  Code  of  Civil 
Procedure,  and  to  pay  such  compensation  as  may  be  assessed  for  such  land 
taken.  "When  it  becomes  necessary  for  the  commissioners  to  construct  any 
wharves  on  the  line  of  the  water  front  they  are  authorized  to  adopt  and  pay  for 
any  structures  which  would  form  j^art  of  such  wharves  and  which  have  been 
constructed  along  such  line  by  private  parties  prior  to  the  passage  of  this  act. 
[Amendment,  apjproved  April  3,  1876;  Amendments  1875-6,51;  took  effect  from 
passage}'^'' 

2526.  Limit  of  money  to  he  collected. 

Sec.  2526.  No  greater  amount  of  money  shall,  in  the  main,  ever  be  collected 
by  the  collection  of  dockage,  wharfage,  tolls,  rents,  and  cranage,  than  shall 
be  necessary  to  construct  and  keep  in  repair  such  number  of  wharves,  piers, 
landings,  and  thoroughfares,  construct  sheds,  dredge  such  number  of  slips  and 
docks,  construct  a  sea-wall  and  harbor  embankment,  and  pay  incidental 
expenses  allowed  to  be  paid  by  this  article.  [Amendment,  approved  February 
28,  1876;  Amendments  1875-6,  32;  took  effect  from  passage. ^'^ 

(a)  See  remarks  at  head  of  Article  IX,  ante,  2520.  -widening  of  East  street     The  amendment  in  the  text 

(b)  This  section  was  previously  amended  by  act  of  enlarged  the  provisions  for  widening  so  as  to  embrace 
February  2.S,  1876;  Amendments  1875-G,  32,  at  the  same      any  of  the  streets  on  the  water  front. 

time  with  the  other  sections  of  the  entire  article.   The         See  also  remarks  ut  head  of  Article  IX,  ante,  2520. 
amendment  of   February   28,   provided    only   for  the  (c)   See  remarks  at  head  of  Article  IX,  ante,  2o20. 

319 


2527-2531  POLITICAL  CODE. 

2527.  Contracts. 

Sec.  2527.  No  contract  or  oliligation  entered  into  by  the  harbor  commis- 
sioners, which  creates  a  liability  or  authorizes  the  payment  of  money,  shall  be 
valid  or  of  binding  force,  unless  signed  by  all  three  of  the  commissioners,  and 
countersigned  by  the  secretary  of  the  board;  and  no  obligation  or  contract  of 
any  kind,  incumng  the  expenditure  of  money,  shall  be  entered  into  by  the 
commissioners,  unless  there  is  money  in  the  state  treasury  to  the  credit  of  the 
San  Francisco  harbor  improvement  fund  sutEcient  to  pay  the  same.  [Amend- 
ment, approved  February  1^,  187G;  Amendments  1875-6,  32;  took  effect  from  pas- 
sage }^^ 

2528.  Dit^position  of  moneys  collected. 

Sec.  2528.  All  moneys  collected  by  virtue  of  this  article  shall  be  paid  by  the 
commissioners  into  the  state  treasurj^  to  the  credit  of  the  San  Francisco  harbor 
improvement  fund,  at  least  as  often  as  once  in  each  month,  in  like  currency  as 
received,  excepting  so  much  thereof  as  may  be  necessary  to  -paj  the  salaries  of 
the  commissioners,  secretary-,  assistant  secretary,  engineers,  attorney-at-law, 
wharfingers,  toll-collectors,  office  rent,  cost  of  office  furniture,  books,  stationery', 
lights,  fuel,  legal  and  other  incidental  expenses,  and  three  thousand  dollars  per 
month  for  urgent  repairs;  which  last-mentioned  sum  the  commissioners  are 
hereby  authorized  to  expend  monthly  in  making  rejmirs  of  wharves,  piers, 
landings,  thoroughfares,  and  other  stmctures  required  by  urgent  necessity, 
without  advertising  for  sealed  proposals  therefor.  And  said  commissioners  are 
authorized  to  remit  such  moneys  to  the  state  treasiirer  by  exj^ress.  [Amend- 
inott,  approved  February  28,  187G;  Amendments  1875-6,  32;  took  effect  from 
passage.^''^ 

2529.  Vouchers,  drafts,  and  xcarrants. 

Sec.  2529.  The  commissioners  shall  take  vouchers  for  all  sums  of  money  by 
them  expended  under  the  authority  of  this  article,  excepting  fifty  dollars  per 
month  for  postage-stamps,  express,  and  other  incidental  expenses,  and  safely 
keep  the  same  on  file  in  the  office  of  the  board.  For  all  sums  of  money  paid 
by  the  commissioners,  excepting  those  mentioned  in  section  2528,  drafts  shall 
be  drawn  by  them  on  the  controller  of  state,  countersigned  by  the  secretary  of 
the  board,  and  the  controller  of  state  shall  draw  his  warrant  on  the  state  treas- 
urer, Avho  shall  pay  the  same  out  of  any  money  in  said  treasury  credited  to  the 
San  Francisco  harbor  improvement  fund.  No  warrant  shall  be  drawn  b}'  the 
controller  upon  the  treasurer  of  the  state,  as  provided  in  this  section,  unless 
the  order  bears  the  signatures  of  all  three  commissioners,  and  of  the  secretary 
of  tlie  board.  [Amendment,  app)roved  February  28,  1876;  Amendments  1875-6, 
3  2 ;  loijk  rjj  eat  from  passage. ' "' 

2530.  lirports  and  receipts. 

Sec.  2530.  On  the  payment  into  the  state  treasury  of  any  sum  of  money,  as 
provided  in  this  article,  the  state  treasvxrer  and  state  harbor  commissioners 
shall  report  to  the  state  controller  the  amount  so  paid;  and  the  state  treasurer 
shall  give  to  the  commissioners  a  receipt  for  all  sums  so  paid.  The  commis- 
sioners sliall  I'cpoit  to  said  state  controller  the  amount  of  money  paid  into  said 
treasury  by  them  during  each  month,  and  shall  also  report  to  said  controller 
the  amount  received  and  disbursed  by  the  board  every  three  months,  and 
durijig  the  period  for  which  such  report  is  made.  [Amendment,  approved  Feb- 
ruary 28,  1876;  Amendments  1875-6,  32;  took  effect  from  passage.'-''^ 

2531.  Ex  officio  mend)ers  of  board. 

Sec.  2531.  The  governor  of  the  state  and  the  mayor  of  the  city  and  county 
of  San  Francisco  are  hereby  made  ex  officio  additional  members  of  the  board 

(a)  See  remarks  at  head  of  Article  IX,  ante,  2520. 

320 


PUBLIC  WAYS.  2531-2535 

of  state  harbor  commissioners,  for  the  special  purposes  herein  mentioned,  and 
shall  take  j)art  in  the  action  of  the  board  as  hereinafter  provided.  \Amend- 
vient,  approved  February  28,  187G;  Amendments   1875-G,  32;    took   effect  from 

2532.  Neio  sea  xoall  for  San  Francisco  harbor. 

Sec.  2532.  The  board  of  state  harbor  commissioners  are  hereby  authoi-ized 
and  empowered  and  directed  within  six  months  from  and  after  the  passage  of 
this  act  to  employ  two  consulting  civil  engineers,  to  act  in  concert  with  the 
engineers  of  the  board,  to  make  a  survey,  select  and  locate  a  new  line  for  a 
harbor  embankment  or  sea-wall,  and  make  a  report  of  their  doings  to  said 
commissioners,  who  shall,  after  receiving  the  same,  appoint  a  time  for  holding 
at  the  office  of  the  board  a  special  meeting  of  the  board,  to  consider  the  ques- 
tion of  the  adoption  or  rejection  of  the  same.  The  board  shall,  at  least  ten 
days  previous  to  said  meeting,  notify  the  governor  of  the  state  and  the  mayor 
of  the  city  and  county  of  San  Francisco  of  the  time,  place,  and  object  of  said 
meeting  of  said  board,  and  shall  request  them  to  be  present  and  take  part  in 
the  consideration  of  the  question;  and  at  said  meeting,  or  any  adjourned  meet- 
ing thereof,  the  governor  and  mayor  shall  be  deemed  additional  members  of 
said  board,  with  like  powers  and  rights  as  the  other  members  thereof.  If  they 
ai'e  not  present  at  the  meeting,  the  board  shall  adjourn  to  a  daj'  certain,  and 
notify  them  anew  as  before;  and  if  either  be  present  at  the  adjourned  meeting, 
with  three  commissioners,  action  may  be  had,  and  an  affirmative  vote  of  all 
four  present  shall  determine  the  question;  any  less  vote  shall  be  a  negative 
vote.  But  the  board  may  order  new  surveys  and  locations,  which  may  be 
adopted  or  rejected  in  like  manner  as  before.  If  the  vote  is  in  the  affirmative, 
the  line  adopted  shall  be  thenceforth  the  line  of  the  harbor  embanlanent  and 
sea-wall  of  the  port  of  San  Francisco.  [Amendment,  approved  February  28, 
1876;  Amendments  1875-6,  32;  took  effect  from  passage}"^ 

2533.  San  Francisco  harbor  improvement  fund. 

Sec.  2533.  On  and  after  the  passage  of  this  act  the  treasurer  of  the  state 
shall  keep  the  money  remitted  to  him  by  the  board  of  state  harbor  commis- 
sioners, to  the  credit  of  a  fund  to  be  known  as  the  San  Francisco  harbor  im- 
provement fund;  all  moneys  in  the  state  treasury  to  the  credit  of  the  state 
wharf  and  dock  fund  shall  be  transferred  by  the  state  treasurer  to  the  San 
Francisco  harbor  improvement  fund,  and  the  state  wharf  and  dock  fvind 
account  shall  be  closed,  and  the  state  treasurer  shall  notify  the  board  of  such 
transfer,  after  which  all  drafts  drawn  by  the  board  shall  be  paid  by  the  treasurer 
out  of  the  San  Francisco  harbor  improvement  fund.  [Amendment,  approved 
February  28,  1876;  Amendments  1875-6,  32;  took  effect  from  passage.'^^^ 

2534.  Limit  of  compensation  for  collecting  dockage,  etc. 

Sec.  2534.  No  greater  sum  than  two  hundred  dollars  per  month  shall  be 
paid,  on  an  average,  for  the  collecting  of  dockage,  wharfage  and  tolls  on  any 
wharf  and  the  bulkhead  adjacent  thereto,  and  for  the  cleaning  of  the  same, 
excepting  at  the  bulkheads  between  Market  and  Mission,  and  Howard  street 
wharves,  at  which  bulkheads  one  hundred  dollars  per  month  may  be  j^aid  until 
wharves  have  been  constructed  between  said  wharves.  [Amendment,  app>roved 
February  28,  1876;  Amendments  1875-6,  32;  took  effect  from  passage.^"^ 

2535.  Duties  of  state  treasurer — Accounts  and  books. 

Sec.  2535.  The  state  treasurer  shall  receive  all  moneys  paid  by  the  state  harbor 
commissioners,  and  keep  the  same  in  a  separate  fund,  to  be  known  as  the  San 
Francisco  harbor  improvement  fund,  and  pay  out  the  same  as  provided  for  in  this 
article,  and  shall  keep  an  accurate  account  of  all  moneys  received  by  him  and  j)aid 

(a)  See  remarks  at  head  of  Article  IX,  ante,  2520. 

21  321 


2535-2536  POLITICAL  CODE. 

out  under  the  authority  of  this  article,  in  books  kept  solelr  for  that  purpose;  which 
said  books  shall  be  open  at  all  times  to  the  inspection  of  the  governor  and  con- 
troller of  state,  and  of  any  committee  appointed  by  the  legislature,  or  by  either 
branch  thereof .  [Ameridment,  approved  February  28,  1876;  Amendments  1875-6, 
32;  tojk  effect  from  passage}^'' 
2536.  Proposals  and  contracts  for  construction  of  neiu  sea-wall. 

Sec.  2536.  "When  the  commissioners  shall  determine  to  commence  the  con- 
struction of  a  continuation  of  the  harbor  embankment  or  sea-wall,  they  must 
advertise  for  sealed  proposals,  for  a  period  of  not  less  than  sixty  days,  in  not 
less  than  two  of  the  daily  newspapers  published  in  the  city  and  county  of  San 
Francisco.  The  advertisement  must  contain  a  full  and  accurate  description  of 
the  work  to  be  performed,  the  material  to  be  used,  and  the  place  where  to  be 
used.  On  a  day  named  in  the  advertisement,  the  commissioners  must  open  the 
bids  in  the  presence  of  such  bidders  as  are  present,  and  award  the  contract  to 
the  lowest  bidder,  who  shall  furnish  a  bond,  with  two  or  more  responsible  sure- 
ties, to  be  approved  by  the  commissioners,  which  approval  shall  be  by  writing, 
indorsed  upon  said  bond,  conditioned  for  the  due  performance  of  the  contract. 
If,  in  the  opinion  of  the  commissioners,  the  bids  are  too  high,  they  shall  reject 
them  and  advertise  anew  in  like  manner  as  before.  And  if,  in  the  opinion  of 
the  commissioners,  the  second  bids  are  also  too  high,  they  shall  reject  them, 
likewise,  and  may  enter  into  a  contract  with  responsible  parties  without  giving 
further  notice.  The  parties  entering  into  a  private  contract  with  the  commis- 
sioners must  give  a  bond,  with  two  or  more  responsible  persons  as  sureties,  to 
be  approved  by  the  commissioners,  which  approval  shall  be  by  writing,  indorsed 
upon  said  bond,  conditioned  for  the  faithful  performance  of  the  contract.  But 
the  consideration  agreed  to  be  i)aid  in  any  contract  entered  into  without  giving 
public  notice  must  be  five  per  cent,  lower  than  the  lowest  responsible  bid  re- 
jected. The  work  to  be  performed  under  any  one  contract  shall  not  exceed  one 
thousand  lineal  feet  of  harbor  embankment  or  sea-wall.  But  the  commissioners 
may  enter  into  as  many  contracts  at  the  same  time  as  they  may  deem  the  public 
good  shall  require,  provided  the  sum  total  of  the  sums  agreed  to  be  paid  shall 
not  exceed  the  amount  of  money  to  the  credit  of  the  San  Francisco  harbor 
improvement  fund  in  said  treasury,  not  required  to  pay  for  the  erection  of  the 
necessary  wharves  and  the  repairing  of  whaiwes  and  other  wooden  structures 
upon  the  city  front,  the  dredging  of  slips  and  docks,  and  incidental  expenses. 
Separate  contracts  may  be  entered  into  for  the  dredging  of  a  channel  for  the 
reception  of  the  rock  required  for  the  constiniction  of  a  harbor  embankment; 
provided,  that  the  advertising  for  sealed  proposals,  the  receiring  and  opening 
of  bids,  and  the  awarding  of  contracts  required  in  this  section,  shall  be  com- 
plied with  in  the  letting  of  such  work  in  separate  contracts.  The  commissioners 
may,  if  in  their  opiuion  it  will  be  more  economical,  dredge  with  the  dredge  be- 
longing to  the  state,  the  channel  necessary  for  the  reception  of  the  stone  used 
in  the  construction  of  the  harbor  embankment  or  sea-wall,  provided  they  adver- 
tise for  the  stone  work  of  the  embankment  or  sea-wall  as  above  set  forth.  No 
contractor  who  enters  into  a  contract  to  construct  any  portion  of  said  harbor 
embankment  or  sea-wall,  shall  be  required  to  commence  the  work  in  less  than 
thirty  days  after  the  awarding  of  the  contract.  The  board  shall,  at  least  ten 
days  previous  to  the  holding  of  any  meeting  as  provided  in  this  section,  notify 
the  governor  of  the  state  and  mayor  of  the  city  and  county  of  San  Francisco, 
of  the  time,  place,  and  object  of  the  meeting,  and  request  them  to  be  pres- 
ent and  take  part  therein;  and  at  said  meetings  the  governor  of  the  state 
and  said  mayor  shall  be  deemed  additional  members  of  said  board,  with  like 

(a)  S«e  remarks  at  head  of  Article  IX,  ante,  2520. 

322 


PUBLIC  WAYS.  2536-2539 

powers  and  rights  as  the  other  members  thereof;  and  no  contract  shall  be 
entered  into  under  the  authority  of  this  article,  without  the  consent  of  either 
the  said  governor  or  said  mayor.  Neither  of  the  commissioners,  nor  their 
appointees,  shall  be  interested  in  anj-  contract  for  the  erection  or  repairing  of 
any  work  upon  the  premises  described  in  this  article.  Any  commissioner  or 
ajopointee  who  shall  be  so  interested  is  guilty  of  a  felony.  Every  proposal  shall 
be  accompanied  by  a  certified  check  for  an  amount  equal  to  five  per  cent,  of  the 
amount  of  such  proposal,  such  check  to  be  made  payable  to  the  order  of  the 
secretary  of  said  board,  conditioned  if  the  proposal  [is]  accepted  and  the  con- 
tract awarded,  and  if  the  bidder  shall  fail  or  neglect  to  execute  the  contract  and 
give  the  bond  required  '^\ithin  six  days  after  the  award  is  made,  in  that  case  said 
sum  mentioned  in  said  check  shall  be  paid  into  the  state  treasury  by  said  secre- 
tary, liquidated  damages  for  such  failure  and  neglect  as  a  portion  of  San  Fran- 
cisco harbor  improvement  fund.  [Amendment,  approved  February  28,  1876; 
Amendments  1875-6,  32;  took  effect f rom  j^assage.'-'" 

2537.  Report  of  commissioners. 

Sec.  2537.  The  commissioners  shall,  on  or  before  the  first  day  of  November, 
A.  D.  eighteen  hundred  and  seventy-seven,  and  every  two  years  thereafter,  make 
to  the  governor  a  full  report  of  all  moneys  by  them  received  and  disbursed, 
stating,  specifically,  for  what  the  same  was  received  and  for  what  purpose  ex- 
pended, and  shall  give  a  concise  account  of  all  improvements  made,  and  the 
general  condition  of  the  jJi'operty  under  their  charge.  [Amendment,  approved 
February  28,  1876;  Amendmeids  1875-6,  32;   took  effect  from  ])assage}'^^ 

2538.  3Iaps  of  changes  in  lines  of  water  front  or  streets. 

Sec.  2538.  In  case  the  lines  of  the  water  front  of  the  city  and  county  of  San 
Francisco,  or  the  lines  of  any  of  the  streets  of  said  city  and  county  ending  at 
said  water  line,  shall  be  changed  by  authority  of  this  article,  the  commission- 
ers shall  cause  to  be  made  two  accurate  maps  of  sruwey,  showing  such  change, 
which  maps  shall  be  dated,  certified,  and  signed  by  the  engineer  of  the  board 
and  commissioners,  and  one  filed  in  the  office  of  the  recorder  of  said  city  and 
county,  and  the  other  in  the  ofiSce  of  the  board.  After  being  so  filed,  they 
shall  be  considered  and  treated  as  official  maps  by  all  the  coiu'ts  of  record  in 
the  state.  [Amendment,  approved  February  28,  1876  ;  Amendments  1875-6,  32; 
took  effect  from  passage.'-''^ 

2539.  Office  and  duties  of  chief  ivharfnger. 

Sec.  2539.  The  chief  wharfinger  shall  keep  an  office  in  some  convenient  place 
upon  the  city  front,  between  Market  and  Pacific  streets,  which  shall  be  kept 
open  every  day  (Sundays  and  holidays  excepted),  from  seven  a.  m.  till  six  p.  m. 
The  commissioners  shall  furnish  a  suitable  building  for  an  office,  for  the  exclu- 
sive use  of  said  chief  wharfinger  and  assistant  chief  Avharfinger,  with  suitable 
office  furniture.  It  shall  be  the  duty  of  the  chief  wharfinger  to  execute  and 
enforce  the  rules  and  regulations  which  may  be  established  by  said  board  of 
state  harbor  commissioners  pursuant  to  the  provisions  of  tliis  article.  And  it 
shall  be  the  duty  of  all  pilots,  masters  of  tug-boats,  masters,  owners,  and  con- 
signees of  vessels,  to  obey  all  lawful  orders  and  directions  of  the  chief  wharf- 
inger in  relation  to  the  stationing,  anchoring,  and  remoA'ing  of  vessels  under 
and  pursuant  to  such  rules  and  regulations.  The  chief  wharfinger  is  empow- 
ered to  determine  cases  of  collision  by  consent  of  all  j^arties  interested,  and 
where  damages  do  not  exceed  three  hundred  dollars  the  decision  is  final. 
[Amendment,  approved  February  2S,  1876;  Amendments  1875-6,32;  took  effect 
from  passage.'-"'' 

(a)  See  remaris  at  head  of  Article IX,  ante,  2520. 

323 


2o40-2543  POLITICAL  CODE. 

2540.  Duties  of  chief  wharfinger  as  to  abandoned  xoater  craft  and  boats  adrift. 
Sec.  2540.  In  addition  to  the  duties  required  to  be  i^erformed  by  the  chief 

wharfinger  by  any  section  in  this  article  preceding  this  section,  he  shall  take  in 
charge  all  abandoned  water  craft  and  all  boats  jncked  ujd  adrift,  and  secure  the 
same,  after  which  he  shall  advertise,  for  one  week,  in  one  of  the  daily  newspa- 
pers printed  in  the  city  and  county  of  San  Francisco,  giving  the  full  particu- 
lars i)ertaining  to  the  same,  and  request  all  i^arties  interested  to  appear  and  es- 
tablish their  title  or  claim  thereto,  within  twenty  days  from  the  last  publica- 
tion. If  claimed  within  said  period,  such  property  shall  be  delivered  to  the 
owner  on  payment  of  all  costs  of  removing,  securing,  and  advertising  the  same. 
If  not  claimed  within  said  period,  or  if  the  owner  fails  to  pay  the  charges,  such 
jiroperty  shall  be  sold  by  the  chief  w^hai-finger,  to  the  highest  bidder,  at  public 
auction,  and  the  proceeds,  less  the  costs,  shall  be  joaid  the  ow^ner,  if  claimed  by 
him,  or,  if  not  claimed  by  the  owner,  shall  be  paid  to  the  board  of  state  har- 
bor commissioners  ;  but  the  owner  shall  be  entitled  to  receive  from  said  board 
the  amount  so  j)aid,  if  he  shall  claim  the  same  within  one  year  from  the  date  of 
said  payment.  For  the  purposes  of  .this  section  the  harbor  of  San  Francisco 
shall  be  the  tide-waters  of  the  city  and  county  of  San  Francisco,  and  the  ju- 
risdiction of  the  chief  wharfinger  shall,  when  performing  the  duties  required  by 
this  section,  be  coextensive  with  such  tide-waters.  [Amendment,  ajypruved  Feb- 
ruary 28,  1876 ;  Amendments  1875-6,  32;  took  effect  from  passage}^^ 

2541.  Refusal  to  obey  lawful  orders  of  chief  loharfinger. 

Sec.  2541.  If  any  master,  agent,  or  owner  of  any  water  craft,  shall  refuse  or  neg- 
lect to  obey  the  lawful  orders  or  directions  of  the  chief  wharfinger  in  any  mat- 
ter pertaining  to  the  regulations  of  said  harbor,  or  the  removal  or  stationing  of 
any  water  craft,  such  master,  agent,  or  owner,  so  refusing  or  neglecting,  is 
guilty  of  a  misdemeanor,  and  upon  conviction  thereof  before  any  court  of  com- 
petent jurisdiction  shall  be  punished  by  a  fine  not  to  exceed  three  hundred  dol- 
lars, or  by  imprisonment  not  to  exceed  one  hundred  days  in  the  jail  of  the  cdty 
and  county  of  San  Francisco.  [Amendment,  approved  February  28,  1876 ; 
Amendments  1875-6,  32;  took  effect  from  jxissage.^"'' 

2542.  Obstructions  to  navigation. 

Sec.  2542.  All  persons  are  forbidden  to  deposit,  or  cause  to  be  deposited,  in 
the  waters  of  the  harbor  of  San  Francisco,  as  described  in  the  preceding  sec- 
tions, any  substance  that  will  sink  and  form  an  obstruction  to  navigation,  with- 
out first  obtaining  permission  in  w^riting  of  the  board  of  state  harbor  commis- 
sioners, which  permission  shall  describe,  with  an  ordinary  degree  of  certainty, 
the  place  were  such  de^DOsit  may  be  made,  and  the  secretary  of  the  board  shall 
record  such  pennission.  Any  person  violating  the  jirohibition  contained  in  this 
section  is  guilty  of  a  misdemeanor,  and  upon  conviction  thereof  before  a  court 
of  competent  jurisdiction,  shall  be  fined  not  less  than  one  hundred  or  more 
than  five  hundred  dollars,  or  impiisoned  in  the  jail  of  the  city  and  county  of 
San  Francisco  not  less  than  thirty  nor  more  than  ninety  days  ;  provided,  that 
nothing  herein  sliall  be  construed  to  jorevent  or  interfere  with  the  constniction 
of  works  now  in  progress  in  connection  with  the  Oakland  harbor.  [Amend- 
ment, approved  February  28,  1876;  Amendments  1875-6,  32;  took  effect  f-iwi  pas- 
sage.'"' 

2543.  Speed  of  horses  and  rdiicles  on  vJiarves. 

Sec.  2543.  It  shall  not  be  lawful  for  any  person  to  drive  a  horse,  or  mule  or 
any  vehicle  drawn  by  ojie  or  more  horses  or  mules,  used  in  the  removal  of  mer- 
chandise upon  any  wharf,  pier,  quay,  landing  or  thoroughfare,  faster  than  a 

[a)  See  remarks  at  hcail  of  Article  IX,  an!e,2o20. 

324 


PUBLIC  WAYS.  2543-2551 

walk.  Any  person  violating"  the  prohibition  in  this  section  contained  is  guilty 
of  a  misdemeanor,  and  upon  conviction  thereof  in  any  coux-t  of  competent  juris- 
diction, shall  be  fined  not  less  than  twenty  dollars,  or  imprisoned  in  the  county 
jail  of  the  city  and  county  of  San  Francisco  not  less  than  ten  days.  [Ainend- 
ment,  approved  February  28,  187G  ;  Amendments  1875-0,32;  took  effect  from 
passage.'-^^ 

2544.  Jurisdiction  of  police  judge's  court. 

Sec.  2544.  The  police  judge's  court  of  the  city  and  county  of  San  Francisco 
shall  have  jurisdiction  to  try  all  cases  of  misdemeanor  arising  under  this  article. 
[Amendment,  approved  Febr'uartj  28,  1876;  Amendments  1875-6,  32;  took  effect 
from  passage.'-"'' 

2545.  Qualifications  of  officers. 

Sec  2545.  No  person  shall  be  appointed  to  any  office  by  authority  of  this 
article  who  is  not  a  qualified  elector  of  the  state;  and  no  person  shall  be  eligible 
to  any  ofiice  by  virtue  of  this  article  who  is  interested  in  any  class  of  water  craft 
sailing  into  and  out  of  the  bay  of  San  Francisco,  as  owner,  mortgagee  or  con- 
signee. [Amendment,  approved  February  28,  187G;  Amendments  1875-6,  32;  took 
effect  from  passage.'-'^'' 

2546.  Official  bonds. 

Sec.  2546.  All  official  bonds  required  to  be  given  by  authority'  of  this  article 
shall  be  to  the  people  of  the  State  of  California.  [Amendment,  ajoproved  Feb- 
ruary 28,  1876;  Amendments  1875-6,  32;  took  effect  from  passu  ge.'^"'' 

2547.  Seal. 

Sec.  2547.  The  board  of  state  harbor  commissioners  shall  procure  and  adopt 
a  seal.  [Amendment,  approved  February  28,  1876;  Amendments  1875-6,  32;  took 
effect  from  passage.'-"^ 

2548.  When  no  tolls  or  wharfage  to  be  collected. 

Sec  2548.  No  tolls  or  wharfage  shall  be  collected  from  travelers  going  on 
board  or  leaving  any  steamer  or  ferry,  or  upon  their  carriages  or  baggage,  nor 
for  empty  packages  returned  to  the  wharf  or  any  vessel,  or  for  domestic  sujiplies 
for  j^rivate  individuals  intended  for  consumi^tion  and  not  for  sale,  weighing  less 
than  one  hundred  pounds.  [Amendment,  ajjproved  February  28,  1876;  Amend- 
ments 1875-6,  32;  took  effect  from  passage. ^^'> 

2549.  Collections  to  be  in  gold  and  silver  coin. 

Sec  2549.  The  revenue  collected  and  disbursed  by  authority  of  this  article 
shall  be  gold  and  silver  coin  of  the  United  States.  [Amendme^it,  approved  Feb- 
ruary 28,  1876;  Amendments  1875-6,  32;  took  effect  from  passage.'-'-^ 

2550.  Wharfingers  and  collectors  to  be  special  policemen. 

Sec  2550.  It  is  hereby  made  the  duty  of  the  board  of  police  commissioners  of 
the  city  and  county  of  San  Francisco  to  appoint  such  number  of  wharfingers 
and  toll  collectors  special  policemen  as  such  commissioners  shall  request  in 
writing,  such  police  commissioners  to  appoint,  and  also  shall  furnish  such 
special  jDolicemen  the  usual  badge  of  office,  which  shall  be  paid  for  hj  the  com- 
missioners; such  appointments  must  be  renewed  once  in  each  year.  The  juris- 
diction of  such  special  policemen  shall  be  coextensive  with  the  premises 
described  in  this  article,  and  their  terms  of  office  as  such  wharfingers  and  toll 
collectors.  [Amendment,  approved  February  28,  1876;  Amendments  1875-6,  32; 
took  effect  from  ■passage.'-^'' 

2551.  Amendments  not  to  impair  pending  actions,  etc. 

Sec  2551,  Nothing  in  this  article  shall  be  taken  or  deemed  to  affect  any  action 

(a)  See  remarks  at  head  of  .\rtiele  IX,  ante,  2520. 

325  / 


2551-2554  POLITICAL  CODE. 

or  suit  now  peudiug,  or  any  rij^lit  of  action  accrued,  or  any  contract  or  obliga- 
tion existing  under  the  provisions  of  the  statutes  hereby  amended;  but  such 
suits  or  actions  may  be  prosecuted  in  the  name  in  Avhich  they  have  been  insti- 
tuted, and  such  rights  of  action,  contract  or  obligation  shall  remain  unimpaired, 
and  may  be  j^roseeuted  and  enforced  in  all  respects  the  same  as  if  this  amend- 
ment had  not  been  made.  [Ainencbnent,  approved  February  28,  1876;  Amend- 
ments 1875-G,  82;  took  effect  from  jMssage}^'' 

2552.  Salaries. 

Sec.  2552.  The  salary  of  each  commissioner,  excej^t  the  governor  and  mayor, 
is  two  hundred  and  fifty  dollars  jjer  month;  the  salary^  of  the  attorney-at-law 
and  the  secretary,  is  two  hundred  dollars  per  month  each;  the  salary  of  the 
chief  wharfinger  is  two  hundred  and  fifty  dollars  j^er  month;  the  salary  of  the 
chief  engineer  is  two  hundred  and  fifty  dollars  per  month;  the  salary  of 
the  assistant  secretary  and  assistant  chief  wharfinger  is  one  hundred  and  fifty 
dollars  per  month  each;  the  salary  of  the  wharfingers  is  one  hundred  dollars 
per  mouth  each;  and  the  salaiy  of  the  toll  collectors  is  eighty  dollars  jDcr  month 
each;  all  of  which  salaries  shall  be  payable  monthly;  provided,  that  no  ex  officio 
officer  or  consulting  engineers  shall  receive  any  compensation  exce2)t  traveling 
and  other  incidental  expenses.  [Amendment,  approved  February  28,  1876; 
Amendments  1875-6,  32;  took  effect  from  passage. '•^^ 

2553.  Duties  of  attorney-general. 

Sec.  2553.  The  attorney-general  of  the  state  must  give  such  legal  advice  and 
render  such  legal  services  as  ma}'  from  time  to  time  be  required  of  him  by  the 
commissioners,  in  connection  with  their  duties,  without  further  compensation. 
[Amendment,  approved  February  28,  1876;  Amendments  1875-6,  32;  took  eff^ect 
from  passage.'-^^ 

2554.  [Sec  2554'"^  was  repealed  by  act  of  Februaiy  28,  1876;  Amendments 
1875-6,  32;  took  effect  from  jiassage.] 

All  Act  to  authorize  the  board  of  state  harbor  commissioners  to  set  apart  a  portion  of  the 
water  front  of  the  city  and  county  of  San  Francisco  for  certain  purposes. 

Approved  March  30,  1872;  1871-2,  728. 

Portion  of  water  front  of  San  Francisco  for  use  offsliermen. 

Section  1.  The  board  of  state  harbor  commissioners  are  hereby  authorized 
and  empowered  to  set  apart,  for  the  exclusive  use  and  benefit  of  the  fishermen 
of  tlie  city  and  county  of  San  Francisco,  such  portion  of  the  water  front  of  said 
city  and  county  of  San  Francisco  as  said  board  of  state  harbor  commissioners 
shall  deem  proper  and  adapted  and  sufficient  for  the  requirements  and  neces- 
sities of  said  fishermen;  provided,  that  said  portion  of  the  water  front  of  said 
city  and  county  of  San  Francisco  to  be  set  apart  by  said  board  of  state  harbor 
connuiH.sioners  shall  be  used  only  for  the  legitimate  jjui^ioses  and  business  of 
said  fishermen,  and  no  other. 

Fiatrs  of  wharfage. 

Sec  2.  The  board  of  state  harbor  commissioners  shall  charge  and  collect  for 
every  fishing  boat  in  the  bay  and  harbor  of  San  Francisco  taking  advantage  of 
the  provisions  of  this  act  such  rent  or  wharfage  as  they  shall  deem  just  and 
proper;  provided,  they  shall  not  charge  more  than  the  following  rates,  to  wit: 
for  boats  thirty-two  (32)  fret  long  or  over,  one  dollar  per  week;  for  boats 
twenty-two  feet  long  and  under  thirty -two  feet,  seventy -five  cents  per  week;  for 
smaller  boats,  fifty  cents  per  week. 

(a)  See  remarkB  at  head  of  Article  IX,  ante,  2520.  ofBce  rooms  with  a  fire-pmof  vault  for  its  use  at  a  rent 

(h)  The  repealed  nection  provided  that  tlio  board     uot  to  exceed  $loO  per  month, 
might  procure  and  leube  on  behalf  of  the  state  suitable 

326 


PUBLIC  WAYS.  2554 

Collecting  officer. 

Sec.  3.  The  board  of  state  harbor  commissioners  are  hereby  authorized  and 
empowered  to  emjDloy  some  suitable  person  to  collect  the  revenue  provided  in 
the  foregoing  section  of  this  act,  and  pay  a  proper  compensation  therefor,  not 
exceeding  one  hundred  dollars  per  month;  and  the  person  so  employed  shall 
be  required  to  iile  a  satisfactoiy  bond  with  the  commissioners  sufficient  to  cover 
any  amount  of  revenue  which  may  at  any  time  remain  in  the  hands  of  such 
collector.  They  shall  further  require  the  person  so  appointed  as  aforesaid  to 
keej)  a  correct  account  of  all  moneys  by  him  collected. 

Use  of  moneys  collected. 

Sec.  4.  All  monej-s  collected  under  this  act,  after  deducting  the  salary  pro- 
vided to  be  paid  to  the  collector  mentioned  in  the  preceding  section  of  this  act, 
shall  be  paid  in  to  the  board  of  state  harbor  commissioners,  and  disposed  of  in 
like  manner  as  other  moneys  collected  by  the  said  board  of  state  harbor  com- 
missioners. 

Fishing  boats  mooring  elsewhere. 

Sec.  5.  The  owner  or  owners  of  any  fishing  boat  which  shall  be  moored  to 
any  portion  of  the  w^ater  front  of  the  city  and  county  of  San  Francisco,  except 
such  as  shall  have  been  set  apart  for  that  purpose  by  the  board  of  state  harbor 
commissioners  under  the  provisions  of  this  act,  shall  be  deemed  guilty  of  a 
misdemeanor  and  fined  in  a  sum  not  less  than  five  dollars  nor  more  than  fifty 
dollars. 

Sec.  6.  This  act  shall  take  effect  immediately. 

An  Act  authorizing  and  directing  the  board  of  state  harbor  commissioners  to  reduce  or 
abolish  the  rate  of  dockage,  wharfage  and  tolls. 

Approved  March  30,  1872;  1871-2,  797. 

Reduction  of  rates  of  dockage,  wharfage  and  tolls. 

Section  1.  The  board  of  state  harbor  commissioners  are  hereby  authorized 
and  directed  to  reduce  the  rates  of  dockage,  wharfage  and  tolls,  or  to  abolish 
the  same,  or  any  of  them,  and  shall,  on  or  before  the  first  day  of  March  a.  d. 
eighteen  hundred  and  seventy-two,  reduce  the  same,  so  that  the  rates  thereafter 
to  be  charged  and  collected  shall  not  exceed  fifty  per  cent,  of  the  rates  charged 
at  the  date  of  the  passage  of  this  act. 

Reduction  on  leases. 

Sec.  2.  Whenever  the  board  reduces  the  rates  of  dockage,  wharfage  or  tolls 
below  the  present  rates,  they  may  make  a  proportionate  reduction  on  th*e 
monthly  payments  on  all  leases  of  the  water  front  leased  by  said  board. 

Sec.  3.  This  act  shall  take  efi'ect  from  and  after  its  passage. 

An  Act  to  authorize  the  board  of  state  harbor  commissioners  to  make  repairs  upon  private 

wharves  in  their  possession. 

Approved  March  26, 1874;  187^-4,  663. 

Maintenance  of  wharves. 

Section  1,  The  board  of  state  harbor  commissioners  are  hereby. authorized  and 
empowered,  in  their  discretion,  to  repair  and  maintain  any  wharf  or  whai-ves  in 
their  possession  or  under  their  control,  notwithstanding  such  wharf  or  whai-ves 
may  belong  to  private  parties,  and  to  pay  the  expenses  thereof  in  the  same 
manner  as  is  now  provided  for  the  repairs  or  maintenance  of  the  w^harves  of 
the  state;  provided,  however,  that  such  authority  to  repair  and  maintain  pri- 
vate wharves  shall  terminate  with  the  termination  of  the  possession  or  control 
of  the  same  on  the  jjart  of  said  board. 

Sec.  2.  This  act  shall  take  efi'ect  immediately  after  its  passage. 

327 


2554  POLITICAL  CODE. 

All  Act  to  authorize  the  board  of  state  harbor  commissiouers  to  adjust  and  pay  cert^tiu 

claims. 

Approved  March  20,  1874;  1873^,  GG4. 

[This  act  proviJccT  for  the  payment  of  so  much  or  all  of  certain  claims  that 
mii^ht  be  found  ecjuitably  due,  not  exceeding  ^25,000  in  all.] 

An  Act  coucerniug  the  state  harbor  commissioners,  and  for  other  purposes. 

Approved  March  30,  1874;  1873-t.  910. 

Harbor  of  San  Francisco. 

Section  1.  The  harbor  of  San  Francisco  is  hereby  placed  under  the  control 
of  the  board  of  state  harbor  commissioners,  and  they  are  authorized  to  regulate 
the  position  of  ships,  their  moorings  and  anchorage,  and  generally  to  make 
niles  and  regulations  concerning  them,  with  power  to  enforce  the  same  as  fully 
as  that  formerly  used  and  exercised  by  the  harbormaster  of  the  city  and  county 
of  San  Francisco. 

Routes  of  ferry  boats. 

Sec  2.  The  commissioners  shall  keep  the  routes  of  the  ferry  boats,  passing 
in  and  out  of  said  harbor,  free  and  open  at  all  times,  so  that  ferry  boats  can 
conveniently  make  their  trips  without  impediment  on  the  part  of  vessels  at 
anchor,  or  other  obstacles. 

Harboi'master. 

Sec.  3.  The  present  harbormaster  of  the  city  and  county  of  San  Francisco  shall 
continue  in  office  as  sucli  until  the  end  of  the  terjn  for  which  he  was  elected, ' 
and  draw  the  salary  allow'ed  him  by  law.  He  shall,  during  such  term,  perform 
such  sen-ices  in  and  about  the  management  and  regulation  of  said  harbor,  as 
the  commissioners  may  require  of  him.  At  the  end  of  said  term  said  office 
shall  become  extinct,  and  all  laws  requiring  the  election  of  such  an  officer  shall 
be  deemed  to  be  repealed  and  abolished,  alid  thereafter  all  harbor  regulations 
and  management  shall  be  performed  by  the  commissioners  as  hereinafter  pro- 
vided. 

Duties,  how  performed. 

Sec.  4.  At  the  end  of  the  term  of  office  of  the  j^resent  harbormaster  of  San 
Francisco,  either  by  lapse  of  time,  resignation,  or  otherwise,  the  state  harbor 
commissioners  shall  rec|uire  said  duties  to  be  jDerformed  by  the  chief  wharfinger, 
or  other  executive  officer  of  said  board,  as  they  may  deem  most  advantageous 
to  the  public  interests,  but  no  special  office  shall  be  created  for  that  purpose 
elone. 

Sec.  5.  This  act  shall  take  e£fect  and  be  in  force  from  and  after  its  passage. 

An  Act  granting  further  i>owers  to  the  board  of  state  harbor  commissioutrs. 
Approved  March  30,  1874;  1873-4,  912. 

Dredgiiuj. 

Section  1.  The  board  of  state  harbor  commissioners  arc  hereby  authorized 
and  empowered  to  do  the  dredging  necessary  to  be  done  under  the  operations 
of  said  department,  and  for  tliat  purpose,  to  build  or  purchase  such  dredgers, 
barges,  and  other  engines,  macliinery,  and  ai)pliances  as  may  be  necessary  to 
do  and  perfoim  said  work,  and  to  emplo}'  all  necessary  men  and  means  there- 
for, and  to  pay  for  the  same  out  of  the  funds  in  the  state  treasury  to  the  credit 
of  said  board,  or  any  moneys  arising  from  the  revenues  of  the  wharves  and 
docks  under  their  charge. 

Sec  2.  This  act  shall  take  effect  and  be  in  force  from  and  after  its  passage. 


328 


PUBLIC  WAYS.  2554-25G9 

An  Act  to  transfer  certain  funds  in  the  state  treasury  belonging  to  the  state  harbor  com- 
mission. 

Approved  April  3,  187G;  1875-6,  761. 

Treasurer  to  tranffer  funds. 

Section  1.  The  state  treasurer  is  hereby  directed  to  close  the  accouut  in  his 
office  known  as  the  "  San  Francisco  harbor  protection  fund,"  and  to  transfer 
the  money  to  its  credit  to  the  account  of  "  San  Francisco  harbor  improvement 
fund." 

Sec.  2.  This  act  shall  take  effect  from  and  after  its  passage. 

An  Act  to  authorize  the  compromise  of  certain  litigation  concerning  a  portion  of  the  water 
front  of  the  city  and  county  of  San  Francisco. 

Approved  April  3,  1876;  1875-G,  905 

[This  act  authorizes  the  governor,  mayor  of  San  Francisco  and  board  of  state 
harbor  commissioners  to  compromise  and  settle  with  claimants  for  the  premises 
l3'iBg  between  Jackson  and  Pacific  streets,  and  outside  of  the  water-front  line 
as  estalilished  by  the  beach  and  water  lot  act  of  March  26,  1851.  The  com- 
promise contemplated  was  to  accept  deeds  of  the  entire  property  to  the  state, 
and  pay  therefor  such  amount  as  might  be  determined  on  out  of  the  San  Fran- 
cisco harbor  improvement  fund.] 

AKTICLE  X. 

HARBOE  COMMISSIONERS  FOR  THE  PORT  OF  EUREKA. 

2567.  Harbor  commissioners  for  the  port  of  Eureka. 

Sec.  2567.  There  is  a  board  of  three  commissioners,  known  as  the  "  Board  of 
harbor  commissioners  of  the  port  of  Eureka. ' '  The  chairman  of  the  board  of 
sui^ervisors  of  Humboldt  county,  and  the  president  of  the  board  of  trustees  of 
the  town  of  Eureka,  in  the  county  of  Humboldt,  are  ex  officio  members  thereof, 
and  the  third  member  is  appointed  by  the  governor  of  the  state,  and  holds  his 
office  for  the  term  of  two  years  from  the  date  of  his  appointment  and  until  his 
\successor  is  appointed  and  qualified. 

i568.  Survey  and  jurisdiction  of  the  hoard. 
Sec.  2568.  The  board  must,  if  the  same  has  not  been  done,  cause  to  be  sur- 
Byed  the  water  front  of  the  town  of  Eureka,  on  Humboldt  baj',  and  the  land 
n'oining  the  town,  one  half  of  a  mile  to  the  west  and  one  half  of  a  mile  to  the 
^t  of  the  corporate  limits  thereof,  and  the  waters  of  the  bay  for  a  distance  of 
mile  northerly  from  the  water  front  line,  and  make  or  cause  to  be  made  a 
1\  of  such  survey,  and  file  a  copy  thereof  in  the  county  recorder's  office  of  the 
^\ij;  within  and  for  these  limits  the  board  of  harbor  commissioners  may 
™^^  such  rules  and  regulations  as  may  be  necessary  and  proper  for  the  protec- 
''^^^f  navigation  therein. 
-^^^  Their  duties,  rules  and  regulations. 
^2569.  The  board  may: 

1-^gulate  the  erection  and  extension  of  wharves  and  piers  and  prescribe  the 
plan^j  dimensions  thereof; 

2-  -julate  the  tolls,  wharfage,  or  dockage  to  be  charged  thereon; 
^-  'ulate  the  manner  of  constructing  booms,  and  to  limit  their  extent  into 
the  w^  of  ti^e  ^^^y; 

■^^  -^nibe  and  regulate  the  manner  in  which  rafts,  boats,  or  vessels  must 
lie  at  a^j^.  ^j.  j^^  moored  to  any  wharf  or  pier; 

^-  -^^it  and  remove  obstructions  to  the  regular  ebb  and  flow  of  the  tides, 
and  the  ipsit  and  escape  into  the  waters  of  the  bay  of  substances  likely  to 
injure,  \^  ^-^j^^  o^,  i^^pede  the  navigation,  or  to  create  shoals  or  shallows 
in  or  less^g  depth  of  the  waters  thereof; 

329 


2369-2619  POLITICAL  CODE. 

6.  Impose  penalties  for  violation  of  such  rules  and  regulations,  not  exceeding, 
for  any  one  violation,  the  sum  of  five  hundred  dollars,  to  be  recovered  by  action 
in  the  name  of  the  board  before  any  court  of  competent  jurisdiction,  together 
with  costs  of  suit,  the  net  proceeds  of  which  actions  must  be  paid  to  the 
treasurer  of  the  town  of  Eureka  for  town  i:»urposes. 

2570.  Board  to  impose  penaltlt^. 

Sec.  2570.  The  tpwu  marshal  of  Eureka  is  the  harbormaster  of  the  port  of 
Eureka.  He  must  enforce  and  carry  into  effect  such  rules  and  regulations  as 
the  board  of  harbor  commissioners  may  from  time  to  time  adopt  and  publish, 
and  must  report  to  the  board  any  and  all  violations  thereof, 

2571.  Cumpensation  and  exjjenses. 

Sec.  2571.  The  members  of  the  board  must  receive  the  sum  of  four  dollars 
for  every  day  actually"  and  necessarily  employed  by  them  in  performing  the 
duties  herein  prescribed,  to  be  paid  from  the  treasury  of  the  town  of  Eureka. 
All  expenses  necessarily  incurred  by  the  board  in  the  performance  of  their 
duties,  must  be  j)aid  in  the  same  manner  and  from  the  same  fund  as  the  mem- 
bers of  the  board  are  herein  provided  to  be  paid. 

2572.  Fees  of  liarhormasier . 

Sec.  2572.  The  fees  of  the  harbormaster  are  prescribed  by  the  board  of  com- 
missioners, and  paid  monthly  by  the  board  of  trustees  of  the  town  of  Eureka, 
upon  the  certificate  of  the  board  of  commissioners,  except  such  fees  as  may  be 
provided  to  be  othei-^-ise  paid  by  the  board. 

ARTICLE  XL 

OF    SAILORS    AND    SAILOR    BOARDING-HOUSES. 

[This  entire  article  from  sections  2583  to  2G07,  inclusive,   relating  to  thf 
"  marine  board  of  the  j)ort  of  San  Francisco"  for  licensing  sailors'  boarding 
houses  and  shii)i)ing  masters,  was  repealed  by  act  apjoroved  December  22, 187f 
Amendments  1875-6,  52;  took  effect  from  passage.     On  account  of  the  abolis" 
ment  of  the  board,  it  is  deemed  useless  to  give  the  repealed  sections,  and  th 
are  accordingly  omitted.] 

CHAPTER  II. 

HIGHWAYS. 

Abticle  I.  Enumeration  of  Highways '^^^ 

II.  RcLKs  AND  Hkstbictions  kespkcting  theik  Usk 2Q'6l 

III.  POWKRS   AND    DUI-IKS    OF   HiGHWAY    Ol'FICKRS ^^^^ 

IV.  Highway  Taiks 2(;57 

V.  Pkkformance  of  Highway  Labor  and  Commutation ^^^^ 

VI.  Laying  Out,  Ai^tkring,  and  Dis(;ontinuino  Roads  •   -''^S 

YII.  Erkction  and  Maintknanck  of  Bridges •  2724 

VIII.   Obstruction  and  Injury  to  Highways •  •  2743 

ARTICLE  I. 

ENUMERATION    OF    UIGHWAYS. 

2618.  TI7i///  are  Jn'fjJncays. 

Sec.  2618.  Highways  are  roads,  streets,  or  alleys,  and  bridf  ^^^^  out 
or  erected  by  the  public,  or  if  laid  out  or  erected  by  others,  "^^*®^  or 
abandoned  to  the  public. 

2619.  Origin  of  higJiways. 

Sec.  2619.  Roads  laid  out  and  recorded  as  highways,  by  ord^  *^®  board 
of  supervisors,  and  all  roads  used  as  such  for  a  period  of  five  '■'^'  ^^'®  liigh- 

330 


PUBLIC  WATS.  2619-2632 

ways.  Whenever  any  corporation  owning  a  toll  bridge  or  a  turnpike,  plank, 
or  common  wagon  road  is  dissolved,  or  discontinues  the  road  or  biidge,  or  has 
expired  by  limitation,  the  bridge  or  road  becomes  a  highway. 

[The  foregoing  section,  and  many  subsequent  ones,  in  relation  to  roads  and 
highways,  so  far  as  they  applied  to  the  counties  of  Calaveras,  Santa  Barbara, 
San  Luis  Obispo,  Ventura,  Fresno,  Kern,  Tehama,  Contra  Costa,  Marin,  Lake, 
Sierra,  Plumas,  Sacramento,  Sutter,  Mendocino,  Marijwsa,  Alameda  and 
Lassen,  and  also  so  far  as  they  applied  to  the  counties  of  Solano,  Los  Angeles, 
San  Joacpiin  and  Yuba,  were  amended  by  act  approved  March  30,  1874  (Amend- 
ments 1873-4,  IIG),  which  took  efiect  in  the  counties  first  named  on  the  sixtieth 
day  after  passage,  and  in  the  four  counties  last  named  on  March  6,  1876.  As 
to  the  counties  not  named  above,  the  original  sections  remain  the  law,  as  they 
did  also  for  the  four  counties  last  named,  until  March  6,  1876.  As  to  the 
counties  named  the  amendments  are  the  law.  See  also  post,  2755.  Sec.  2619 
was,  as  aforesaid,  amended  so  as  to  read  as  follows:] 

Sec.  2619.  Koads  laid  out  and  recorded  as  highways  by  order  of  the  board  of 
supervisors,  are  highways.  Whenever  any  corjioration  owning  a  toll  bridge  or 
a  turnpike,  j)lank,  or  common  wagon  road,  is  dissolved,  or  has  expired  by 
limitation  or  non-user,  the  bridge  or  road  becomes  a  highway.  [Amendment, 
approved  March  30, 1874;  Amendments  1873-4,  116;  took  effect  as  indicated, -^ost, 
2755. 

2620.  Abandonment  of  highways. 

Sec  2620.  A  road  not  worked  or  used  for  the  period  of  five  years  ceases  to  be 

a  highway  for  any  purpose  whatever. 

[Amended  for  certain  counties  (see  ante,  2619,  and  post,  2755)' as  follows:] 
Sec.  2620.  Eoads  laid  out  as  provided  in  section  two  thousand  six  hundred 

and  nineteen  of  this  act  shall  not  be  vacated  or  cease  to  be  a  highway  until  so 

ordered  by  the  board  of  supervisors.     [Amendment,  approved  March  30,  1874; 

Amendments  1873-4,  116;  took  effect  as  indicated,  post,  2755. 

2621.  Duties  of  clerk  relative  to  road  matters. 

Sec.  2621.  The  clerk  of  the  board  of  suj)ervisors  must  keep  a  book  in  which 
must  be  recorded  sej^arately  all  proceedings  of  the  board  relative  to  each  road 
district,  including  orders  laying  out,  altering,  and  opening  roads  ;  and  in  a  sep- 
arate book  a  description  of  each  road  district,  its  overseers,  its  roads,  highways, 
contracts,  and  all  other  mattei-s  jjertaining  thereto. 

AETICLE  II. 

RULES   AND    RESTRICTIONS    RESPECTING    THE   USE    OF    HIGHWAYS. 

2631.  The  public  easement. 

Sec  2631.  By  taking  or  accepting  land  for  a  highway  the  public  acquire  only 
the  right  of  way  and  the  incidents  necessary  to  enjojdng  and  maintaining  it, 
subject  to  the  regulations  in  this  and  the  Civil  Code  pro\dded.  All  trees  within 
the  highway,  except  only  such  as  are  requisite  to  make  or  repair'  the  road  or 
bridges  on  the  same  land,  are  for  the  use  of  the  owner  or  occupant  of  the  land. 
[Amended  for  certain  counties  (see  ante,  2619,  and  post,  2755)  as  follows  :] 
Sec  2631.  By  taking  or  accepting  land  for  a  highway,  the  public  acquire  only 
the  right  of  way  and  the  incidents  necessary  to  enjoying  and  maintaining  it, 
subject  to  the  regulations  in  this  and  the  Civil  Code  j)rovided.  [Amendment, 
approved  March  30,  1874  ;  Amendments  1873-4,  116  ;  took  effect  as  indicated,  post 
2755. 

2632.  Adjoining  owner  may  construct  sidewalk. 

Sec  2632.  Any  owner  or  occupant  of  land  may  construct  a  sidewalk  on  the 
highway  along  the  line  of  his  land,  subject,  however,  to  the  authority  conferred 

331 


2G32-2G17  POLITICAL  CODE. 

by  law  on  the  board  of  supei-visors  and  the  overseers  of  highways  ;  and  any 
l^erson  using  such  sidewalk  with  horse  or  team  without  permission  of  the  owner 
is  hable  to  such  owner  or  occupant  in  the  sum  of  five  dollars  for  each  trespass 
and  for  all  damages  suffered  thereby. 

2633.  Jlay  plant  frees. 

Sec.  2G33.  Any  owner  or  occupant  of  land  adjoining  a  highway  not  less  than 
three  rods  wide  may  plant  trees  on  the  side  contiguous  to  his  land.  They  must 
be  set  in  regular  rows,  at  a  distance  of  at  least  six  feet  from  each  other  and  not 
more  than  six  feet  from  the  boundary  of  the  highway.  If  the  highway  is  more 
than  six  rods  wide  the  row  must  not  be  less  than  six  nor  more  than  twelve  feet 
from  the  boundary  of  the  highway.  Whoever  injures  any  of  them  is  liable  to 
the  owner  or  to  the  occupant  for  the  damage  which  is  thereby  sustained. 

2634.  Gas,  ivater,  and  railroad  corporations  may  lay  down  conductors  and  track. 
Skc.  2G3J:.  Every  gas,  water,  or  railroad  corporation  has  jDOwer  to  lay  con- 
ductors and  tracks  through  the  public  ways  and  squares  in  any  city,  village,  or 
town,  when  it  is  established,  with  the  consent  of  the  municipal  authorities 
thereof,  and  under  such  reasonable  regulations  as  the  authorities  and  the  law 
prescribe. 

2635.  Other  corporations  may  acquire  right  of  way. 

Sec.  2G35.  The  cases  and  manner  in  which  railroad,  plank  road,  turnpike, 
and  common  wagon  road  corporations  may  acquire  a  right  of  way  upon  the 
l^ublic  highways,  are  jDrovided  for  in  the  subsequent  chapters  of  this  Code,  in 
Title  VII,  Part  III  of  The  Code  of  Civil  Procedure,  and  under  title  "Cor- 
porations" of  The  Civil  Code. 

[The  part  of  the  Code  of  Civil  Procedure  referred  to  will  be  found  post, 
11,287.] 

AKTICLE  III. 

POWERS  AND  DUTIES  OF  BOARDS  OF  SUPERVISORS    AND    HIGHWAY  OFFICERS  OVER  HIGHWAYS. 

2645.  Counties  classified  for  highway  purposes. 

Sec.  2645.  For  highway  jjurposes  the  counties  of  this  state  are  divided  into 
two  classes: 

1.  Counties  having  a  pox^lation  of  ten  thousand  inhabitants  or  over  are  of 
the  first  class; 

2.  Counties  having  a  population  of  less  than  ten  thousand  are  counties  of 
the  second  class. 

[The  foregoing  section  was  repealed  as  to  the  counties  named  ante,  2G19,  and 
post,  2755,  by  act  approved  March  30,  1874;  Amendments  1873-4,  117;  took 
effect  as  indicated  post,  2755.] 

2646.  Commissioners  of  highways. 

Sec.  2G4G.  For  all  counties  of  the  first  class  there  must  be  elected  at  the 
general  election  every  two  years  some  elector  of  the  county  to  act  as  commis- 
sioner of  higlnvays,  Avho  holds  his  office  for  two  years,  commencing  and  ending 
at  the  time  and  in  like  manner  as  other  ministerial  county  officers.  He  must 
give  an  official  bond  in  the  sum  of  twenty  thousand  dollars,  executed  as  other 
official  bonds  are  executed,  and  take  the  usual  oath  of  office.  The  board  of 
supervisors  must  order  the  election,  fill  vacancies,  and  exercise  a  supervisory 
control  over  the  commissioners  of  highways. 

[Repealed  as  to  certain  counties  March  30,  1874;  Amendments  1873-4,  117; 
took  effect  as  indicated  post,  2755.] 

2647.  Duties  of  commissioners  of  Jughways  and  boards  of  supervisors. 

Sec  2G47.  In  the  counties  of  the  first  class  the  commissioners  of  highways, 
Bubject  to  rejection  or  modification  and  approval  of  the  board  of  supervisors, 

332 


PUBLIC  WAYS.  .  2G47 

and  in  counties  of  the  second  class  the  board  of  supervisors,  by  proper  ordi- 
nances, must: 

1.  Divide  the  county  into  a  suitable  and  convenient  number  of  road  districts, 
and  appoint  therefor  annually,  or  whenever  vacancies  occur,  overseers,  with 
power  to  remove  them  at  pleasure; 

2.  Cause  to  be  surveyed,  viewed,  laid  ovit,  recorded,  opened  and  worked,  such 
highways  as  are  necessary  for  public  convenience,  as  in  this  chapter  provided; 

3.  Cause  to  be  recorded  as  highways  such  roads  as  have  become  such  by  usage 
or  abandonment  to  the  public; 

4.  Abolish  or  abandon  such  as  are  unnecessaiy; 

5.  Contract,  agree  for,  purchase  or  otherwise  acquire  the  right  of  way  over 
private  property  for  the  use  of  public  highways;  and  for  that  purpose  institute, 
or  require  the  district  attorney  to  institute,  proceedings  under  Title  VII,  Part 
III  of  The  Code  of  Civil  Pkocedure,  and  to  pay  therefor  from  the  district  road 
fund  of  the  particular  district;     [See  post,  11,237.] 

6.  Let  out  by  contract,  the  improvement  of  highways,  and  the  construction 
and  repair  of  bridges  or  other  adjuncts  to  highways,  when  the  amount  of  work 
to  be  done  by  contract  exceeds  one  hundred  dollars; 

7.  Levy  a  i^roperty  road  tax; 

8.  Order  and  direct  overseers  specially  in  regard  to  work  to  be  done  on  par- 
ticular roads  in  their  districts; 

9.  Cause  to  be  erected  and  maintained  on  the  highways  they  may  designate, 
milestones  or  posts,  and  guide-j)osts,  properly  inscribed; 

10.  Cause  the  road  tax  collected  each  year  to  be  apportioned  to  the  road  dis- 
tricts entitled  thereto,  and  kept  by  the  treasurer  in  separate  funds; 

11.  Audit  and  draw  warrants  on  the  funds  of  the  respective  road  districts 
when  required  to  pay  for  right  of  way  or  work  or  improvements  thereon. 

[Amended  for  certain  counties  (see  ante  2619,  and  post  2755)  as  follows:] 
Sec.  2647.  The  board  of  suj)ervisors  of  each  county,  by  proper  ordinance, 
must : 

1.  Divide  the  county  into  a  suitable  and  convenient  number  of  road  districts, 
and  appoint  therefor  annually,  or  whenever  vacancies  occur,  overseers,  uj)on 
petition  of  a  majority  of  property  taxpayers  of  the  road  district,  with  power  to 
remove  for  cause; 

2.  Cause  to  be  surveyed,  viewed,  laid  out,  recorded,  opened  and  worked,  such 
highw^ays  as  are  necessary  for  public  convenience,  as  in  this  chapter  provided; 

8.  Abolish  or  abandon  such  as  are  unnecessaiy; 

4.  Contract,  agree  for,  purchase  or  otherwise  acquire  the  right  of  way  over 
private  property  for  the  use  of  public  highways,  and  for  that  purpose  institute, 
or  require  the  district  attorney  to  institute,  proceedings  under  Title  YII,  Part 
III  of  The  Code  of  Civil  Procedure,  and  to  pay  therefor  from  the  district  road 
fund  of  the  particular  district; 

5.  Let  out  by  contract  the  improvement  of  highways  and  the  construction 
and  repair  of  bridges,  or  other  adjuncts  to  highways,  when  the  amount  of  work 
to  be  done  by  contract  exceeds  three  hundred  dollars; 

6.  Levy  a  property  road  tax; 

7.  Order  and  direct  overseers  specially  in  regard  to  work  to  be  done  on  par- 
ticular roads  in  their  districts; 

8.  Cause  to  be  erected  and  maintained  on  the  highways  they  may  designate, 
milestones  or  posts,  and  guide-posts,  properly  inscribed; 

9.  Cause  the  road  tax  collected  each  year  to  be  apportioned  to  the  road  dis- 
tricts entitled  theretcr,  and  kept  by  the  treasurer  in  separate  funds; 

10.  Audit  and  draw  warrants  on  the  funds  of  the  respective  road  districts, 
when  required  to  i^ay  for  right  of  way,  or  work  or  improvements  thereon; 

833 


2647-2G50  POLITICAL  CODE. 

11.  Furnish  to  eacb  roacl  overseer  a  copy  of  tlais  chapter.  [Amendmenfs 
approved  March  30,  1874;  Amendments  1873-4,  117;  took  effect  as  indicated,  post 
2755. 

2648.  Road  districts,  how  defined  and  described. 

Sec.  2G48.  The  road  districts  must  be  carefull,y  and  distinctly  defined  and 
described,  .and  designated  by  the  municipal  towns  or  townships;  until  such 
division  is  made  the  road  districts  of  the  vaiious  counties  must  continue  as  they 
are  at  present  defined.  Eoad  districts  may  be  altered,  changed,  created  or 
modified  by  the  commissioner  of  highways  and  the  board  of  supervisors,  as 
occasion  requires.  "When  such  acts  are  done  by  the  commissioner,  they  are 
subject  to  rejection,  modification  and  approval  by  the  board. 

[Amended  for  certain  counties  (see  ante  2619,  and  post  2755)  as  follows:] 
Sec.  2G48.  The  road  districts  must  be  carefully  and  distinctly  defined  and 
described,  and  designated  b}'  the  municipal  towns  or  townshijjs  or  precinct 
lines;  until  such  division  is  made,  the  road  districts  of  the  various  counties 
must  continue  as  they  are  at  present  defined.  Road  dtstricts  may  be  altered, 
changed,  created,  or  modified  by  the  board  of  supervisors  as  occasion  requires, 
and  upon  petition  of  a  majority  of  the  land  owners  in  any  precinct  or  school 
district,  they  shall  constitute  such  precinct  or  school  district  a  road  district. 
[Amendment,  approved  March  30,  1874;  Amendments  1873-4,  118;  took  effect  as 
indicated,  post,  2755. 

2649.  Overseers  notified  to  give  bond,  take  oath,  etc. 

Sec  2G49.  Overseers  of  road  districts  receive  notice  of  their  appointment 
from  the  commissioner  of  highways  or  the  clerk  of  the  board  of  super^'isors, 
and  within  ten  days  thereafter  must  give  the  ofiicial  bond  required  by  the  board 
of  supervisors  in  the  order  of  appointment  or  confirmation,  and  take  the  usual 
oath  of  office.  The  notice  and  certificate  that  the  bond  has  been  filed,  and  the 
oath  taken  and  indorsed  thereon,  or  a  certified  coj^y  thereof,  constitutes  a  com- 
mission, and  authorizes  the  person  named  in  and  holding  the  same  to  discharge 
the  duties  of  overseer  until  superseded. 

[Amended  for  certain  counties  (see  ante  2619,  and  post  2755)  as  follows:] 
Sec  2649.  Overseers  of  road  districts  receive  notice  of  their  appointment 
from  the  clerk  of  the  boax'd  of  supervisors,  and  within  ten  days  thereafter  must 
give  the  official  bond  required  by  the  board  of  supervisors  in  the  order  of 
appointment  or  confirmation,  and  take  the  usual  oath  of  office.  The  notice  and 
certificate  that  the  bond  has  been  filed,  and  the  oath  taken  and  indorsed 
thereon,  or  a  certified  copy  thereof,  constitutes  a  commission,  and  authorizes 
the  person  named  in  and  holding  the  same  to  discharge  the  duties  of  overseer, 
until  superseded.  [Amendment,  approved  March  30,  1874;  Amendments  1873-4, 
118;  took  effect  as  indicated,  post,  2755.] 

2650.  Duties  of  road  overseer. 

Sec.  2G50.  Road  overseers,  under  the  direction  and  supervision  and  pursuant 
to  orders  of  tlie  commissioner  of  highways  or  the  board  of  supervisors  appoint- 
ing tliem,  must: 

1.  Take  charge  of  the  public  highways  within  their  respective  districts; 

2.  Keep  them  clear  from  obstructions  and  in  good  repair; 

3.  Cause  banks  to  be  gi'aded,  bridges  and  causeways  to  be  made  where  neces- 
sary, keep  the  same  in  good  repair,  and  renew  them  when  destroyed; 

4.  Give  two  days'  notice  to  the  inhabitants  of  his  road  district  liable  to  do 
work  on  roads,  when,  where,  with  what  implements,  and  under  whose  direction 
to  work,  and  superintend  the  same; 

5.  Collect,  from  each  inhabitant  notified  to  work  and  who  fails  to  work  or 
prefers  to  pay  it,  the  commutation  fee; 

334 


PUBLIC  WAYS.  2650-2652 

6.  Make  semi-annual  reports  of  all  labor  performed  in  his  district,  and  how 
all  road  poll  tax  and  commutation  moneys  were  expended,  to  the  commis- 
sioner of  highways  or  board  of  supervisors,  under  oath; 

7.  Receive  and  present  petitions  for  new  roads,  recommend  or  disapprove 
the  same,  and  assist  in  laying  them  out; 

8.  Collect  all  road  poll  taxes  in  the  mode  provided  for  the  collection  of  other 
poll  taxes,  and  faithfully  account  for  and  pay  over  the  same; 

9.  Pay  over  to  his  successor,  or  into  the  fund  of  his  road  district  in  the  county 
treasury,  all  road  moneys  in  his  hands  and  unexpended; 

10.  Receive  for  his  services,  from  money  coming  into  his  hands  belonging  to 
his  road  district,  the  sum  of  three  dollars  for  each  day's  service  performed  by 
him,  to  be  audited  and  ordered  paid  by  the  board  of  supervisors. 

[Amended  for  certain  counties  (see  ante  2619,  and  post  2755),  as  follows:] 
Sec.  2G50.  Road  overseers,  under  the  direction  and   supeiwision,  and  pur- 
suant to  orders  of  the  board  of  supervisors  appointing  them,  must: 

1.  Take  charge  of  the  public  highways  within  their  respective  districts; 

2.  Keep  them  clear  from  obstructions  and  in  good  repair; 

3.  Cause  banks  to  be  graded,  bridges  and  causeways  to  be  made  where  neces- 
sary, keep  the  same  in  good  repair,  and  renew  them  when  destroyed; 

4.  Give  two  days'  notice  to  the  inhabitants  of  his  road  district  liable  to  do 
work  on  roads,  when,  where,  with  what  implements,  and  under  whose  direction 
to  work,  and  superintend  the  same; 

5.  Collect  from  each  inhabitant  notified  to  work,  and  who  fails  to  work  or 
prefers  to  pay  it,  the  commutation  fee; 

6.  Make  semi-annual  reports  of  all  labor  joerformed  in  his  district,  and  how 
all  road  poll  tax  and  commutation  moneys  were  exjjended,  to  the  board  of  su- 
pervisors, under  oath; 

7.  Receive  and  present  petitions  for  new  roads,  recommend  or  disapprove  of 
the  same,  and  assist  in  laying  them  out; 

8.  Collect  all  road  poll  taxes  in  the  mode  provided  for  the  collection  of  other 
poll  taxes,  and  faithfully  account  for  and  pay  over  the  same; 

9.  Pay  over  to  his  successor,  or  into  the  fund  of  his  road  district  in  the 
county  treasury,  all  road  moneys  in  his  hands  and  unexpended; 

10.  Receive  for  his  services,  from  money  coming  into  his  hands  belonging  to 
his  road  district,  the  sum  of  three  dollars  for  each  day's  service  performed  by 
him,  not  to  exceed  three  hundred  dollars  per  annum,  to  be  audited  and  ordered 
paid  by  the  board  of  supervisors;  provided,  that  each  road  overseer  in  the 
county  of  Sierra  shall  receive  four  dollars  per  day  for  each  day's  service  per- 
formed by  him.  [Amendment,  aijproved  March  30,  1874;  Amendments  1873-4, 
119;  took  effect  as  indicated,  post,  2755. 

2651.  Commissioner  of  highways,  duties. 

Sec.  2651.  The  commissioner  of  highways  must  attend  each  session  of  the 
board  of  supervisors,  when  road  matters  of  the  county  are  under  consideration, 
and  consult  with  and  advise  them  of  all  matters  pertaining  to  the  roads  of  the 
county;  and  must  supervise  and  correct  the  list  of  inhabitants  liable  to  road 
service  in  each  district  in  the  county;  distribute  to  road  overseers  their  respec- 
tive lists  of  assessments;  see  that  they  collect  and  apply  the  same;  receive 
reports  from  road  overseers  and  report  the  same  semi-annually  to  the  board  of 
supervisors. 

[Repealed  as  to  certain  counties  March  80,  1874;  Amendments  1873-4,  120; 
took  effect  as  indicated  post,  2755.] 

2652.  Compensation  of  commissioner  of  highways. 

Sec  2652.  The  commissioner  of  highways  must  receive  a  salaiy  of  one  thou- 

335 


2652-2G57  POLITICAL  CODE. 

sand  dollars  per  annum,  to  be  paid  quarterly  by  order  of  the  board  of  super- 
visors from  the  aggregate  road  tax  collected  and  paid  into  the  county  treasury 
for  road  purposes,  which  must  be  set  apart  for  such  ^^^u-pose  prior  to  the  dis- 
tribution of  the  same  among  the  road  districts. 

[Repealed  as  to  certain  counties  March  30,  1874;  Amendments  1873-4,  120; 
took  effect  as  indicated  post,  2755.  J 

2653.  General  road  fund  for  general  road  purposes. 

Sec.  2G53.  From  the  road  tax  collected  from  all  sources  the  board  of  super- 
visors may  -annually  set  ajDart  a  sum  not  exceeding  fifteen  per  cent,  of  the 
aggregate  for  general  county  road  purposes,  from  which  they  may  direct  such 
amounts  to  be  paid  as  may  be  found  necessary  for  such  general  road  purposes 
in  which  the  inhabitants  of  all  the  districts  are  more  or  less  interested.  The 
object  of  the  aiDproi:)riation  must  be  specified  in  each  order  made  therefor. 
[Amended  for  certain  counties  (see  ante  2G19,  and  post  2755)  as  follows:] 
Sec  2G53.  From  the  proj^erty  road  tax  collected  horn,  all  sources,  the  board 
of  sujDervisors  may  annually  set  apart  a  sum  not  exceeding  twenty  per  cent,  of 
the  aggregate  for  general  county  road  purposes,  from  which  they  may  direct 
such  amounts  to  be  paid  as  may  be  found  necessary  for  such  general  road 
purposes,  in  which  the  inhabitants  of  all  the  districts  are  more  or  less  inter- 
ested. The  object  of  the  appropriation  must  be  specified  in  each  order  made 
therefor.  The  board  shall  have  no  j)ower  to  create  debt  on  any  road  district 
in  excess  of  ten  j)er  cent,  on  the  estimated  amount  of  the  tax  receii:)ts  from 
said  district  for  the  next  ensuing  year.  [Amendment,  aj)proved  March  30,  1874; 
Amendments  1873-4,  120;  took  effect  as  indicated,  post,  2755. 

2654.  Bonds  of  road  district  for  macadamizing. 

Sec.  2G54.  Upon  a  petition  signed  by  a  majority  of  persons  liable  to  pay  a 
road  tax  of  any  kind,  and  also  of  those  owning  a  majority  of  the  taxable  prop- 
erty in  anj'  road  district,  the  board  of  sujoervisors,  for  the  purpose  of  macad- 
amizing the  roads  of  such  district  (but  for  no  other  purpose),  may  issue  bonds 
of  the  road  district  not  exceeding  in  the  aggregate  five  per  cent,  of  the  taxable 
property  thereof.  The  bonds  so  issued  shall  bear  interest  at  the  rate  of  eight 
per  cent,  per  annum,  payable  annualh',  and  must  be  redeemed  within  five  years 
from  date  of  issuance.  The  board  must  also  levy  a  tax  annually,  not  exceeding 
one  and  one  eighth  of  one  per  cent. ,  for  the  payment  of  interest  and  a  part  of 
the  principal  of  such  bonds,  until  the  entire  amount  of  bonds  issued  are  re- 
deemed. The  provisions  of  this  section  shall  apply  to  any  bonds  heretofore 
issued  for  the  purposes  therein  mentioned.  [New  section,  approved  March  30, 
1874;  Amendments  1873-4,  38;  took  eject  July  G,  1874. 

ARTICLE  IV. 

HIGHWAY  TAXES. 

2657.    WJio  owe  a  road  poll  tax. 

Sec.  2657.  Every  male  inhabitant  of  a  road  district  over  twenty-one  and  under 
fifty  years  of  age  must  perform  two  days'  labor  annually,  to  be  known  as  the 
road  poll  tax,  upon  the  roads  and  highways  of  the  district,  under  the  demand 
and  direction  of  the  road  overseer  thereof;  or  pay  to  such  overseer  a  commuta- 
tion fee  of  four  dollars,  or  such  smaller  amount  as  may  be  fixed  as  the  commu- 
tation fee  by  the  board  of  sujjen'isors. 

[Amended  for  certain  counties  (see  ante  2G10,  and  post  2755)  as  follows:] 
Sec.  2G57.  Eveiy  male  inhabitant  of  a  road  district,  over  twenty-one  and 
under  fifty  years  of  age,  must  perform  two  days'  labor,  annually,  to  be  known 
as  the  road  poll  tax,  upon  the  roads  and  highways  of  the  district,  under  the 

33G 


PUBLIC  WAYS.  2G57-2GC0 

demand  and  direction  of  the  road  overseer  thereof,  or  pay  to  siach  overseer  a 
commutation  fee  of  four  dollars.  [Amendment,  approved  Mar'ch  30, 1874;  Amend- 
meiifs  1873-4,  120;  took  effect  as  indicated,  post,  2755. 

2658.  Overseers  to  make  a  list  of  inliahitavts. 

Sec.  2658.  Each  road  overseer  must,  within  twenty  days  after  lieing  notified 
of  his  appointment  and  qualification,  deliver  to  the  clerk  of  the  board  of  super- 
visors, or  to  the  commissioner  of  highwaj's,  a  list  of  the  inhabitants  of  his  dis- 
trict liable  for  the  road  poll  tax  therein.  This  list  must  be  laid  before  the 
board  of  suj^ervisors  at  their  first  meeting  held  thereafter. 

[Amended  for  certain  counties  (see  ante  2619,  and  post  2755)  as  follows:] 
Sec.  2658.  Each  road  overseer  must,  within  twenty  days  after  being-  notified 
of  his  appointment  and  qualification,  deliver  to  the  clerk  of  the  board  of  super- 
visors a  list  of  the  inhabitants  of  his  district  liable  for  the  road  poll  tax  therein. 
This  list  must  be  laid  before  the  board  of  supenasors  at  their  first  meeting  held 
thereafter.  [Amendment ,  approved  Ilarcli  30,  1874;  Amendments  1873-4,  120; 
took  effect  as  indicated,  post,  2755. 

2659.  Levy  of  road  poll  tax,  when  and  how  made. 

Sec.  2659.  The  board  of  supervisors  must  each  year,  prior  to  the  meeting  at 
which  they  are  required  to  levy  the  property  tax  for  county  purj)Oses,  estimate 
the  probable  amount  of  property  tax  for  highway  purposes  which  may  be  neces- 
sary for  the  ensuing  year  over  and  above  the  road  poll  tax,  and  must  regulate 
and  fix  the  amount  of  property  highway  tax,  and  levy  the  same  thereby;  and, 
at  the  same  time,  the  board  of  sujDervisors  must  fix  the  commutation  fee  for  the 
road  poll  tax  at  an  amount  not  exceeding  four  dollars. 

[Amended  for  certain  counties  (see  ante  2619,  and  post  2755)  as  follows:] 
Sec.  2659.  The  board  of  supervisors  must,  each  year,  prior  to  the  meeting  at 
which  they  are  required  to  levy  the  property  tax  for  county  purposes,  estimate 
the  probable  amount  of  property  tax  for  highway  purjooses  which  may  be  neces- 
sary for  the  ensuing  year  over  and  above  the  road  poll  tax,  and  must  regulate 
and  fix  the  amount  of  j^i'^P^i'ty  highway  tax,  and  levy  the  same  thereby. 
[Amendment,  approved  3Iarch  30,  1874;  Amendments  1873-4,  121;  took  effect  as 
indicated,  post,  2755. 

[There  are  special  laws  in  various  counties  as  to  the  collection  of  the  road 
poll  tax,  which  will  be  found  noted  under  the  heads  of  the  respective  counties 
having  them.] 

2660.  Road  poll  tax  receipts. 

Sec.  2660.  At  the  time  of  fixing  the  commutation  fee,  the  board  of  super- 
visors must  provide  proper  blank  road  poll  tax  receipts,  to  be  signed  by  the 
clerk  of  the  board;  and  must  deliver  to  each  road  overseer,  or  the  commissioner 
of  highways  for  such  overseers,  a  number  to  each  equal  to  the  number  of  in- 
habitants of  their  respective  districts  liable  for  road  poll  tax,  take  receipts  there- 
for, and  charge  the  road  office  receiving  the  same  therewith ;  but  credit  must 
be  given  to  each  road  overseer  for  all  unsold  blank  road  poll  tax  receipts  re- 
turned to  the  clerk  of  the  board  of  supervisors. 

[Amended  for  certain  counties  (see  ante  2619,  and  post  2755),  as  follows:] 
Sec.  2660.  The  board  of  supervisors  must  provide  proper  blank  road  poll  tax 
receipts,  to  be  signed  by  the  clerk  of  the  board;  and  must  deliver  to  each  road 
overseer  a  number  to  each  equal  to  the  number  of  inhabitants  of  their  resj)ective 
districts  liable  for  road  poll  tax,  take  receipt  therefor,  and  charge  the  road 
office  receiving  the  same  therewith;  but  credit  must  be  given  to  each  road  over- 
seer for  all  unsold  blank  road  poll  tax  receipts  returned  to  the  clerk  of  the 
board  of  siipervisors.  [Amendment,  approved  March  30,  1874;  Amendments 
1873-4,  121;  took  effect  as  indicated,  post,  2755, 
22  337 


2661-2664  POLITICAL  CODE. 

2661.  Tax  list  made  out — Tax  collected  and  applied. 

Sec.  2G61.  In  counties  of  the  first  class  the  commissioner  of  highways,  and  of 
the  second  class  the  road  overseers,  must  make  out  lists  of  the  inhabitants  of 
the  road  districts  liable  for  road  j^oll  tax,  and  require  of  each  the  performance 
of  the  labor  or  the  payment  of  the  commutation  fee  fixed  by  the  board  of  su- 
pervisors, and  apply  such  labor  and  commutation  money  in  the  opening,  main- 
tenance, and  repair  of  the  highways  and  adjuncts  in  their  respective  road  dis- 
tricts. The  lists,  when  j^repared  by  the  commissioner,  mnst  be  j)laced  in  the 
hands  of  the  road  overseers  for  the  purposes  in  this  section  named. 

[Amended  for  certain  counties  (see  ante  2619,  and  post  2755),  as  follows:] 
Sec.  2661.  Road  overseers  must  make  out  lists  of  the  inhabitants  of  the  road 
districts  liable  for  road  poll  tax,  and  require  of  each  the  performance  of  the 
labor  or  the  payment  of  the  commutation,  and  apply  such  labor  and  commuta- 
tion money  in  the  opening,  maintenance,  and  repair  of  the  highways  and  ad- 
juncts in  their  respective  road  districts.  {Amendment,  approved  March  30, 1874; 
Amendments  1873—4,  121;  took  effect  as  indicated,  post,  2755. 

2662.  Overseers  to  add  omitted  and  new  inhabitants. 

Sec.  2662.  The  commissioner  of  highways  and  road  overseers  must  from  time 
to  time  add  to  the  lists  the  names  of  persons  liable  for  road  poll  tax  who  were 
omitted  or  who  have  become  inhabitants  of  his  district  since  the  original  list 
was  made,  and  enforce  the  road  poll  tax  or  collect  the  commutation  fee  therefor, 
and  apply  the  same  as  hereinbefore  provided. 

[Amended  for  certain  counties  (see  ante  2619,  and  post  2755)  as  follows:] 
Sec.  2662.  The  road  overseers  must,  from  time  to  time,  add  to  the  lists  the 
names  of  persons  liable  for  road  poll  tax,  who  were  omitted,  or  who  have  be- 
come inhabitants  of  his  district  since  the  original  list  was  made,  and  enforce  the 
the  road  poll  tax,  or  collect  the  commutation  fee  therefor,  and  apply  the  same 
as  hereinbefore  provided.  [Amendment,  ajyproved  March  30,  1874;  Amendments 
1873-4,  122;  took  effect  as  indicated,  post  2755. 

2663.  Annnal  prope7ii/  road  tax,  hoiv  levied,  collected,  etc. 

Sec  2663.  The  annual  property  tax  for  road  purposes  must  be  levied  by  the 
board  of  supervisors  at  their  session  when  the  tax  is  by  them  levied  for  county 
purposes,  and  must  not  exceed  thirty  cents  on  each  one  hundred  dollars  in  value 
of  taxable  property.  This  property  road  tax,  when  levied,  must  be  annually 
assessed  and  collected  by  the  same  of&cers  and  in  the  same  manner  as  other 
state  and  county  taxes  are  levied,  assessed,  and  collected,  and  turned  over  to 
the  county  treasurer  for  the  use  of  the  road  districts  from  which  it  is  respec- 
tively collected. 

2664.  Ciiies  and  towns  not  to  pay  tax. 

Sec  2664.  The  road  poll  and  property  tax  herein  provided  for  must  not  be 
levied  or  collected  from  the  inlial)itants  or  property  of  incorporated  towns  and 
cities  which  by  municipal  authority  levy  such  taxes  for  the  streets  and  alleys 
thereof.  Bridges  crossing  the  line  between  cities  or  towns  and  road  districts, 
must  be  constinicted  by  the  cities  or  towiis  and  the  road  fund  of  the  road  dis- 
tricts into  which  such  bridges  reach,  projiortionally. 

[Amended  for  certain  counties  (see  ante  2619,  and  post  2755)  as  follows:] 
Sec  2664.  Bridges  crossing  the  line  between  cities  or  towns  and  road  dis- 
tricts, must  be  constructed  by  the  cities  or  towns  and  the  road  fund  of  the  road 
districts  into  which  such  bridges  reach,  proportionally;  provided,  that  the 
board  of  supervisors  may  order  the  whole  exjiense  of  constructing  or  repairing 
said  bridges  out  of  the  general  road  fund  of  the  county.  [Amendment,  approved 
March  30,  1874;  Amendments  1873-4,  122;  took  effect  as  indicated,  post,  2755. 

338 


PUBLIC  WAYS.  2680-2685 

AETICLE  V. 

PERFORMANCE    OF    HIGHWAY   LABOR    AND    COMMUTATION. 

2680.  Persons  must  not  work  out  of  district. 

Sec.  2G80.  Road  overseers  must  not  require  an  individual  to  work  out  of  the 
district  in  which  he  resides, 

2681.  Employers  responsible  for  higlnvay  labor  assessed  to  employees. 

Sec.  2681.  Corporations  or  other  employers  of  residents  in  any  hip^hway 
district,  are  responsible  for  the  road  poll  tax  assessed  against  their  employees, 
and  a  notice  to  the  employer  or  managing  agent  requiring  the  payment  of  the 
road  poll  tax  of  the  employee,  charges  such  employer  or  corporation  with  such 
road  poll  tax. 

2682.  Pencdty  for  loss  of  time  or  idleness — Substitutes. 

Sec.  2682.  Each  person  appearing  must  actually  work  eight  hours  each  day, 
to  be  credited  to  him  by  the  overseer;  for  every  hour  unuecessaril}'  lost  or 
idled  away  he  must  be  charged  two  hours,  to  be  worked  out  on  some  other  day 
under  notice  from  the  overseer.  Any  person  may  work  by  an  able-bodied 
substitute. 

2683.  Pencdty  neglect. 

Sec  2683.  Every  person  receiving  due  notice,  who  does  not  appear  and 
labor  or  commute,  is  delinquent. 

2684.  Excuse  for  neglect  no  exemption. 

Sec.  2684.  The  overseer's  acceptance  of  an  excuse  for  a  neglect  in  no  case 
exempts  the  person  excused  from  performing  or  commuting  for  the  whole 
number  of  days  work  for  which  he  was  assessed. 

2685.  Overseers,  to  ivhom  and  what  to  report. 

Sec.  2685.  Every  overseer  must  make  to  the  commissioner  of  highways  or 
board  of  supervisors,  semi-annually,  a  written  account,  under  oath,  containing: 

1.  The  names  of  all  persons  assessed  to  work  in  his  district; 

2.  The  names  of  all  who  have  actually  worked,  and  the  number  of  days; 

3.  The  names  of  all  who  have  commuted,  and  the  amount  received  from 
them; 

4.  The  names  of  all  delinquents,  and  the  amount  collected  from  them; 

5.  A  full  return  by  items  of  the  amount  of  labor  and  money  expended  at  each 
separate  point,  and  the  manner  in  which,  and  the  time  when  the  same  was  done; 

6.  The  number  of  road  poll  tax  receipts  sold,  and  those  returned  unsold; 

7.  An  accurate  account  of  every  day  he  himself  was  employed,  and  the  nature 
and  items  of  the  service  rendered. 

[Amended  for  certain  counties  (see  ante  2619,  and  post  2755)  as  follows:] 
Sec  2685.  Every  overseer  must   make  to  the  board   of   supervisors,    semi- 
annually, a  written  account,  under  oath,  containing: 

1.  The  names  of  all  persons  assessed  to  work  in  his  district; 

2.  The  names  of  all  who  have  actually  worked,  and  the  number  of  days; 

3.  The  names  of  all  who  have  commuted,  and  the  amount  received  from  them; 

4.  The  names  of  all  delinquents,  and  the  amount  collected  from  them; 

5.  A  full  return  by  items  of  the  amount  of  labor  and  money  expended  at  each 
separate  point,  and  the  manner  in  which,  and  the  time  when  the  same  was  done; 

6.  The  number  of  road  poll  tax  receipts  sold,  and  those  returned  unsold; 

7.  An  accurate  account  of  every  day  he  himself  was  employed,  and  the  nature 
and  items  of  the  service  rendered.  [Amendment,  approved  March  30,  1874; 
Amendments  1873-4,  122;  took  effect  as  indicated,  post,  2755. 

339 


2686-2699  POLITICAL  CODE. 

2686.  I^cporis,  by  icliom  and  ivhal. 

Sec.  2686.  The  commissioner  of  liigliwajs  and  tlie  'boiird  of  supervisors  may 
require  special  reports  from  road  overseers  when  deemed  proper.  The  commis- 
sioner of  highways  must  report  to  the  board  of  supervisors  all  reports  of  road 
overseers  made  to  him,  showing-  airtlie  facts_contained  in  their  reports  made  to 
him. 

I  Repealed  as  to  certain  counties  March  30,  1874;  Amendments  1873-4,  123; 
took  effect  as  indicated,  post,  2755.] 

2687.  JReport  of  unexpended  moneys. 

Sec  2687.  The  commissioner  of  highways  and  road  overseers  must  accom- 
pany their  reports  with  all  unexpended  moneys  remaining  in  their  hands  at  the 
date  of  the  report,  and  a  statement  of  all  moneys  in  the  county  treasury  to  the 
credit  of  their  road  district. 

[Amended  for  certain  counties  (see  ante  2619,  and  post  2755)  as  follows:] 
Sec  2687.  Road  overseers  must  accompany  their  reports  with  all  unexpended 
moneys  remaining  in  their  hands  at  the  date  of  the  report.     [Amendment,  ap- 
proved March  30,  1874;  Amendments,  1873-4,  123;  took  effect  as  indicated,  post, 
2755. 

2688.  Penalty  for  failure  to  rejoort  or  pay  over. 

Sec.  2688.  A  failure  to  make  a  report  as  required,  or  to  j^ay  over,  on  the 
order  of  the  commissioner  of  highways  or  of  the  board  of  supervisors,  any 
moneys  in  his  hands,  subjects  the  overseer  to  a  penalty  of  tAventy-five  dollars, 
to  be  recovered  in  an  action  on  his  bond,  together  with  any  balance  due  from 
him;  suit  therefor  may  be  instituted  by  the  commissioner  of  highways  or  dis- 
trict attorney,  under  order  of  the  board  of  supervisors. 

[Amended  for  certain  counties  (see  ante  2619,  and  post  2755)  as  follows:] 
Sec.  2688.  A  failure  to  make  a  report  as  required,  or  to  pay  over,  on  the 
order  of  the  board  of  supervisors,  any  moneys  in  his  hands,  subjects  the  over- 
seer to  a  penalty  of  twenty-five  dollars,  to  be  recovered  in  an  action  on  his 
bond,  together  with  any  balance  due  from  him.  Suit  therefor  may  be  instituted 
by  the  district  attorney,  under  order  of  the  board  of  supervisors.  YAmendment, 
approved  March  30,  1874;  Amendments  1873-4,  123;  took  effect  as  indicated,  post, 
2755. 

ARTICLE  VI. 

LAYING    OUT,  ALTEKING    AND    DISCONTINUING    EOADS. 

2698.  T17;o  n^ay  apply  for  change. 

Sec  2698.  Any  ten  inhabitants  of  a  road  district  taxable  therein  for  road 
purposes  may  petition  in  writing  the  commissioner  of  highways  or  the  board 
of  supervisors  to  alter  or  discontinue  any  road,  or  to  lay  out  a  new  road 
therein. 

[Amended  for  certain  counties  (see  ante  2619,  and  post  2755)  as  follows:] 
Sec.  2698.  Any  ten  inhabitants  of  a  road  district,  taxable  therein  for  road 
purposes,  may  petition  in  writing  the  board  of  supervisors,  to  alter  or  discon- 
tinue any  road,  or  to  lay  out  a  new  road  therein.     [Amendment,  approved  March 
30,  1874;  Amendments  1873-4,  123;  took  effect  as  indicated,  post,  2755. 

2699.  Wliat  the  petition  must  show. 

Sec  2699.  The  petition  must  set  forth  and  describe  particularly  the  road  to 
be  abandoned,  discontinued,  altei'ed,  or  constructed,  and  the  general  route 
thereof,  over  what  lands,  and  who  the  owners  thereof  are,  whether  the  owners 
consent  thereto,  and  if  not,  the  probable  cost  of  the  right  of  way,  the  necessity 
for  and  the  advantages  of  the  proposed  change. 

340 


PUBLIC  WAYS.  2700-2704 

2700.  The  peiitioners  lo  give  bonds  for  cof<fs. 

Sec.  2700.  The  petitioners  must  accompany  tlie  petition  witli  a  good  and  suf- 
ficient bond,  to  be  approved  by  the  supervisors,  in  double  the  amount  of  the 
probable  cost  of  the  viewing  and  la^'ing  out  or  altering  of  any  road,  conditioned 
that  the  bondsmen  will  pay  all  the  costs  of  viewing  and  surveying  in  case  the 
prayer  is  not  granted  and  the  road  finally  not  opened. 

2701.  Sicperviso^'s  to  order  change  and  appoint  viewers. 

Sec.  2701.  UiJon  filing  such  petition  and  bond,  the  board  of  supervisors  must 
apj)oint  three  viewers,  one  of  whom  must  be  a  surveyor,  to  view  and  survey  any 
pro23osed  alteration  of  an  old  or  opening  of  a  new  road,  to  be  made  in  accord- 
ance with  the  descrij)tion  in  the  petition,  and  submit  to  the  board  an  estimate 
of  the  cost  of  the  change,  alteration,  or  opening,  including  the  purchase  of  the 
right  of  way  and  their  views  of  the  necessity  thereof. 

2702.  Viewers  to  he  appointed,  and  their  duties. 

Sec.  2702.  The  road  viewers  must  be  disinterested  citizens  of  the  county,  but 
not  jjetitioners;  they  must  be  sworn  to  discharge  their  duties  faithfully;  must 
view  and  lay  out  the  proj)osed  alteration  or  new  road  over  the  most  practicable 
route;  notify  the  owners  of  land  over  which  it  passes  of  the  proposed  route; 
ascertain  whether  the  owners  consent  thereto,  and  the  amount,  if  any,  they 
claim  or  demand  for  the  right  of  way  over  the  same;  estimate  the  actual  dam- 
age to  any  land  over  which  it  passes,  and  the  cost  of  any  bridges  or  grading 
necessary;  the  necessity  for  and  public  convenience  to  be  subserved  by  the  road, 
and  whether  the  opening  thereof  or  change  therein  projDosed  should  be  had. 

2703.  Report  of  viewers. 

Sec.  2703.  When  the  view  and  survey  of  the  proposed  alteration  or  new  road 
is  completed  the  viewers  must  report  to  the  board  of  supervisors : 

1.  The  course,  termini,  length,  and  cost  of  construction  of  the  proposed  road; 

2.  The  estimate  of  damage  to  the  owner  of  any  land  over  which  it  is  proposed 
to  run  the  road: 

3.  The  names  of  landowners  who  consent  to  give  the  right  of  way,  and  their 
written  consent  thereto; 

4.  The  names  of  landowners  who  do  not  consent,  and  the  amount  of  damage 
claimed  by  each; 

5.  Such  other  facts  bearing  upon  the  subject  of  importance  to  be  known  by 
the  board  of  supervisors. 

2704.  Report  not  to  he  approved,  when. 

Sec.  2704.  No  report  of  viewers  must  by  the  board  of  supervisors  be  ap- 
proved which,  without  the  consent  of  the  owner  and  occupant,  runs  the  road: 

1.  Through  an  orchard  of  four  j^ears  growth; 

2.  Through  a  garden  or  yard  four  years  cultivated; 

3.  Through  buildings  or  fixtures,  or  erections  for  the  purposes  of  residence, 
trade,  or  manufacture; 

4.  Through  inclosures  necessary  for  the  iise  or  enjoyment  of  the  buildings, 
fixtures,  or  erections;  or 

5.  Through  inclosed  or  improved  lands; 

Unless  the  board  of  supervisors  are  satisfied,  from  personal  examination  and 
observation,  or  from  the  sworn  statement  of  at  least  twelve  respectable  residents 
of  the  road  district,  that  the  opening  of  such  road  through  such  premises  is  an 
absolute  necessity,  a  great  public  benefit,  or  a  great  convenience  to  a  moiety  of 
the  inhabitants  of  the  district. 

[Amended  for  certain  counties  (see  ante  2619,  and  post  8755)  as  follows:] 
Sec.  2704.  No  report  of  viewers  must,  by  the  board  of  supervisors,  be  ap- 

341 


2704r-2707  POLITICAL  CODE. 

proved  -which,  -u-ithout  the  consent  of  the  owner  and  occui:)ant,  would  have  the 
effect  to  open  a  road  : 

1.  Through  an  orchard  of  four  years  growth; 

2.  Through  a  garden  or  yard  four  years  cultivated; 

3.  Through  buildings,  or  fixtures,  or  erections  for  the  j)urposes  of  residence, 
trade,  or  manufacture; 

4.  Through  inclosures  necessary  for  the  use  or  enjoyment  of  the  buildings, 
fixtvu'es,  or  erections;  or, 

5.  Through  inclosed  or  improved  lands;  unless  the  board  of  supervisors  are 
satisfied,  from  personal  examination  and  observation,  or  from  the  sworn  state- 
ment of  at  least  five  residents  of  the  road  district,  that  the  opening  of  such 
road  through  such  premises  is  a  necessity,  a  great  jDublic  benefit,  or  a  great 
convenience  to  a  moiety  of  the  inhabitants  of  the  district.  [Amendment,  ap- 
proved March  30,  1874;  Amendments  1873-4,  124;  took  effect  as  indicated,  post, 
2755. 

2705.  Viexoers  and  surveyors  how  paid,  and  on  ivhat  certificate. 

Sec.  2705.  The  viewers  must  be  paid  three  dollars  each  per  day  for  their 
ser^^.ces  out  of  the  road  fund  of  the  district  through  which  the  road  passes,  and 
the  surveyor  his  legal  fees  for  services  in  running  out  and  mapping  the  road 
and  making  the  plat  and  field  notes,  which  must  be  filed  when  required  before 
he  receives  his  compensation. 

2706.  Proceedings  of  board  in  hearing  report. 

Sec.  2706.  The  board  of  supervisors,  on  the  coming  in  of  the  report,  must 
fix  a  day  for  hearing  the  same,  must  notify  the  owners  of  land  not  consenting 
to  give  the  right  of  way  of  the  hearing,  by  having  written  notice  served  on 
them  personally,  or  on  the  occupant  or  agent  of  the  owner,  or  if  neither,  by 
posting  notice  at  the  most  consi^icuoias  place  on  the  land,  or  left  at  the  owner's, 
agent's,  or  occupant's  residence  ten  days  prior  to  the  day  fixed  for  the  hearing; 
and  must,  on  the  day  fixed  or  to  which  it  may  be  j^ostponed  or  adjourned,  hear 
evidence  and  proof  from  all  parties  interested  for  and  against  the  pro^^osed 
alteration  or  new  road,  ascertain,  and  b}^  order  declare,  the  amount  of  damage 
awarded  to  each  non-consenting  landowner,  and  declare  the  report  of  the 
viewers  to  be  approved  or  rejected.  If  the  rei)ort  is  rejected  the  road  must 
not  be  altered  or  opened. 

[Amended  for  certain  counties  (see  ante  2G19,  and  jiost  2755)  as  follows:] 
Sec  2706.  The  board  of  supervisors,  on  the  coming  in  of  the  report,  must 
fix  a  day  for  hearing  the  same;  must  notify  the  owners  of  land  not  consenting 
to  give  the  right  of  way  of  the  hearing,  by  having  written  notice  served  on 
them  personally,  or  on  the  occui^ant  or  agent  of  the  owner;  or  if  neither,  by 
posting  notice  at  the  most  conspicuous  place  on  the  land,  or  left  at  tlie  owner's, 
agent's,  or  occupant's  residence  ten  days  prior  to  the  day  fixed  for  the  hearing; 
and  must,  on  the  day  fixed,  or  to  wdiich  it  may  be  postponed  or  adjourned,  hear 
evidence  and  proof  from  all  parties  interested  for  and  against  the  proposed 
alteration  or  new  road;  ascertain,  and  by  order  declare,  the  amount  of  damage 
aw^arded  to  each  non-consenting  landowner,  and  declare  the  report  of  the 
viewers  to  be  approved  or  rejected.  [Ameitdmeid,  approved  Marcli  30,  1874; 
Amendments  1873-4,  124;  took  effect  as  indicated,  post,  2755. 

2707.  Effect  of,  and  proceedings  on  apj)roval  of  rieivers'  report. 

Sec.  2707.  If  the  board  api)rove  the  report,  and  there  are  no  non-consenting 
landowners,  the  road  must,  by  order,  be  declared  a  public  highway,  and  the 
commissioner  of  highways  or  the. road  overseer  ordered  to  open  the  same  to  the 
public.  If  there  are  non-consenting  landowners  the  board  must  aj^propriate 
from  the  road  fund  of  the  district,  and  cause  the  commissioner  and  road  over- 

342 


PUBLIC  WxVYS.  2707-2712 

seer  to  tender  to  such  non-consenting  landowners  the  award  for  damages  made 
by  the  board.  If  the  awards  are  all  accepted  the  road  must  be  declared  a 
public  highway  and  be  opened  as  before  provided. 

[Amended  for  certain  counties  (see  ante  2019,  and  post  2755)  as  follows:] 
Sec.  2707.  If  the  board  approve  the  report,  and  there  are  no  non-consenting 
landowners,  the  road  must,  by  order,  be  declared  a  public  highway,  and  the 
road  overseer  ordered  to  open  the  same  to  the  public.  If  there  are  non-con- 
senting landowners,  the  board  must  appropriate  from  the  road  fund  of  the  dis- 
trict, and  cause  the  road  overseer  to  tender  to  such  non-consenting  landowners 
the  award  for  damages  made  by  the  board.  If  the  awards  are  all  accepted,  the 
road  must  be  declared  a  public  highway,  and  be  ojoened  as  before  provided. 
[Amendme^U,  airpi^oved  March  30,  1874;  Amendments  1873-4,  125;  look  effect  as 
indicated,  post,  2755. 

2708.  Proceedings  to  procure  7'ight  of  way. 

Sec.  2708.  If  any  award  of  damages  is  rejected  by  the  landowners  the  board 
must,  by  order,  direct  proceedings  to  procure  the  right  of  way  to  be  instituted 
by  the  commissioner  of  highAvays,  or  district  attorney  of  the  county,  under  and 
as  provided  in  Title  VII,  Part  III,  of  the  Code  of  Civil  Procedure,  against  all 
non-accepting  landowners,  and  when  thereunder  the  right  of  way  is  procured, 
the  road  must  be  declared  a  public  highway  and  oj^ened  as  hereinbefore  pro- 
vided. 

[Amended  for  certain  counties  (see  ante  2619,  and  post  2755)  as  follows:] 

Sec.  2708.  If  any  award  of  damages  is  rejected  by  the  landowners,  the  board 
must,  by  order,  direct  proceedings  to  procure  the  right  of  way  to  be  instituted 
by  the  district  attorney  of  the  county,  under  and  as  provided  in  Title  VII,  Part 
III,  of  the  Code  of  Civil  Procedure,  against  all  non-accepting  landowners,  and 
when  thereunder  the  right  of  way  is  procured,  the  road  must  be  declared  a 
public  highway,  and  opened  as  hereinbefore  provided.  But  if  any  non-con- 
senting landowner  does  not  recover  a  greater  amount  of  damages  than  shall 
have  been  allowed  him  by  the  board  of  supervisors,  then  he  shall  pay  all  costs 
and  expenses  incurred  by  reason  of  any  suit  or  other  proceedings  instituted  in 
the  matter.  [Amendment,  approved  Mai^ch  30,  1874;  Amendments  1873-4,  125; 
took  effect  as  indicated,  post,  2755. 

[The  part  of  the  Code  of  Civil  Procedure  referred  to  will  be  found  post, 
11,237.] 

2709.  Awards,  how  and  by  whom,  paid. 

Sec.  2709.  All  awards  by  agreement,  ascertainment  by  the  board,  or  by  the 
proper  court,  must  be  paid  out  of  the  road  fund  of  the  district  on  the  order  of 
the  board  of  supervisors.  If  the  road  lies  in  more  than  one  district  the  super- 
visors must  proportionately  divide  the  awards  and  other  costs  between  them. 

2710.  Width  of  hightcays. 

Sec.  2710.  All  highways  must  be  at  least  fifty  feet  wide,  except  those  now 
existing  of  a  less  width. 

2711.  Private  roads,  hoiv  opened. 

Sec.  2711,  Private  or  by-roads  may  be  opened  for  the  convenience  of  one  or 
more  residents  of  any  road  district  in  the  same  manner  as  public  roads  are 
opened,  whenever  the  board  of  supervisors  may  for  like  cause  order  the  same 
to  be  viewed  and  opened,  the  person  for  whose  benefit  the  same  is  required 
paying  the  damages  awarded  to  landowners,  and  keeping  the  same  in  repair. 

2712.  Conveyances  or  decrees  of  condemnation  of  lands  to  he  recorded. 

Sec.  2712.  In  all  cases  where  consent  to  use  the  right  of  way  for  a  highway 
is  voluntarily  given,  purchased,  or  condemned,  and  paid  for,  either  an  instru- 
ment in  writing  conveying  the  right  of  way  and  incidents  thereto,  signed  and 

343 


2712-2724  POLITICAL  CODE. 

acknowledged  by  the  party  making  it,  or  a  certified  copy  of  tlie  decree  of  the 
court  condemning  the  same,  must  be  made  and  filed  and  recorded  in  the  ofiice 
of  the  recorder  of  the  county,  in  which  the  land  so  conveyed  or  condemned 
must  be  particularly  described. 

2713.  Boads  crossing  railroads,  canals,  or  ditches. 

Sec.  2713.  "SVlienever  highw^ays  are  laid  out  to  cross  railroads,  canals,  or 
ditches  on  public  lands,  the  owners  or  corporations  using  the  same  must,  at 
their  own  expense,  so  prepare  their  roads,  canals,  or  ditches  that  the  public 
highway  may  cross  the  same  without  danger  or  delay;  and  when  the  right  of 
way  for  a  public  highway  is  obtained  through  the  judgment  of  any  court  over 
any  raikoad,  canal,  or  ditch,  no  damages  must  be  awarded  for  the  simple  right 
to  cross  the  same. 

2714.  Fence  to  be  removed,  hoxo. 

Sec  2714.  When  the  alteration  of  an  old  or  the  ojjening  of  a  new  road 
makes  it  necessary  to  remove  fences  on  land  given,  purchased,  or  condemned 
by  order  of  a  court  for  road  or  highway  purposes,  notice  to  remove  the  fences 
must  be  given  by  the  road  overseer  or  commissioner  of  highways  to  the  owner, 
his  occupant,  or  agent,  or  by  posting  the  same  on  the  fence,  and  if  the  same  is 
not  done  within  ten  days  thereafter,  or  commenced  and  prosecuted  as  speedily 
as  possible,  the  commissioner  of  highways  or  road  overseer  may  cause  it  to  be 
carefully  removed  at  the  expense  of  the  owner,  and  recover  of  him  the  cost  of 
such  removal,  and  the  fence  material  may  be  sold  to  satisfy  the  judgment. 
[Amended  for  certain  counties  (see  ante  2G19,  and  post  2755)  as  follows:] 
Sec.  2714.  "When  the  alteration  of  an  old,  or  the  opening  of  a  new  road, 
makes  it  necessary  to  remove  fences  on  land  given,  purchased,  or  condemned 
by  order  of  a  court,  for  road  or  highway  purposes,  notice  to  remove  the  fences 
must  be  given  by  the  road  overseer  to  the  owner,  his  occupant,  or  agent,  or  by 
posting  the  same  on  the  fence,  and  if  the  same  is  not  done  within  ten  days 
thereafter,  or  commenced  and  prosecuted  as  speedily  as  possible,  the  road 
overseer  may  cause  it  to  be  carefully  removed  at  the  expense  of  the  owaier,  and 
recover  of  him  the  cost  of  such  removal,  and  the  fence  material  may  be  sold  to 
satisfy  the  judgment.  [Amendment,  approved  March  30,  1874 ;  Amendments 
1873-4,  126;  took  effect  as  indicated,  post,  2755. 

ARTICLE  VII. 

ERECTION   AND    MAINTENANCE    OF    BRIDGES. 

2724.   Bridges,  how  maintained  and  by  whom. 

Sec.  2724.  All  public  bridges  not  otherwise  specially  provided  for,  are  main- 
tained by  the  road  district  in  which  they  are  situate,  the  districts  which  they 
unite,  and  the  county  at  large,  in  the  same  manner  as  highways,  and  under  the 
management  and  control  of  the  commissioner  of  highways,  road  overseer,  and 
board  of  supervisors,  the  expense  of  constructing,  maintaining,  and  repairing 
the  same  being  primarily  payable  out  of  the  road  fund  of  the  district  in  the 
hands  of  the  road  overseer  or  county  treasurer,  and  from  road  poll  taxes. 
[Amended  for  certain  counties  (see  ante  2G19,  and  post  2755)  as  follows:] 
Sec.  2724.  All  public  bridges  not  otherwise  specially  provided  for,  are  main- 
tained by  the  road  district  in  which  they  are  situate,  the  districts  which  they 
unite,  and  the  county  at  large,  in  the  same  manner  as  highways,  and  under  the 
management  and  control  of  the  road  overseer  and  the  board  of  supervisors,  the 
expense  of  constructing,  maintaining,  and  repairing  the  same,  being  primarily 
payable  out  of  the  road  fund  of  the  district,  in  the  hands  of  the  road  overseer 
or  county  treasurer,  and  from  road  poll  taxes.  [A)nendment,  approved  March 
30,  1874;  Amendments  1873-4,  12G;  took  effect  as  indicated,  xjost,  2755. 

344 


PUBLIC  WAYS.  2725-2728 

2725.  When  aid  may  be  given  by  county  for-  bridge. 

Sec.  2725,  Whenever  it  appears  to  the  board  of  super\dsors  that  any  road 
district  is  or  woukl  be  unreasonably  burdened  by  the  expense  of  constnicting 
or  maintenance  and  repair  of  any  bridge,  they  may,  in  their  discretion,  cause  a 
portion  of  the  aggregate  cost  or  expense  to  be  paid  out  of  the  general  road 
fund  of  the  county,  or  out  of  the  general  county  fund,  or  both,  or  they  may 
levy  a  sjDecial  bridge  tax  therefor,  not  exceeding  one  fourth  of  one  per  cent, 
on  the  taxable  jDroperty  of  the  county,  annually,  till  the  amount  appropriated 
in  aid  is  raised  and  paid.  In  the  county  of  Tehama  the  amount  rais£f&  for  any 
one  bridge  shall  not  exceed  the  sum  of  ten  thousand  dollars  for  any  one  year, 
unless  the  i3roj)osition  to  raise  the  amount  is  first  submitted  to  a  vote  of  the 
people  of  the  county  in  the  manner  and  at  the  time  and  under  such  rules  as 
the  board  may  prescribe  and  a  majority  of  the  votes  are  in  favor  of  the  propo- 
sition. [Amendynent,  approved  Ilarch  30,  1874;  Amendments  1873-4,  130;  took 
effect  immediately y^ 

2726.  Construction  and  repair  of  bridges  to  be  let  out  by  contract. 

Sec.  2726.  No  bridge,  the  cost  of  the  construction  or  repair  of  which  will 
exceed  the  sum  of  one  hundred  dollars,  must  be  constructed  or  repaired  except 
on  ord^r  of  the  board  of  supervisors.  When  ordered  to  be  constructed  or 
repaired,  the  contract  therefor  must  be  let  out  to  the  lowest  bidder,  after  reason- 
able notice  given  by  the  board  of  supervisors,  through  the  commissioner  of 
highways  or  road  overseer,  by  publication  at  least  two  weeks  in  a  county  news- 
paper; and  if  none,  then  by  three  posted  notices — one  at  the  court-house,  one 
at  the  point  to  be  bridged,  and  one  at  some  other  neighboring  public  place; 
the  bids  to  be  sealed,  opened,  and  the  contract  awarded  at  the  time  specified  in 
the  notice.  The  contract  and  bond  to  perform  it  must  be  entered  into  to  the 
approval  of  the  board  of  sujoervisors. 

[Amended  for  certain  counties  (see  ante  2619,  and  post  2755)  as  follows:] 
Sec.  2726.  No  bridge,  the  cost  of  the  construction  or  repair  of  which  will 
exceed  the  sum  of  three  hundred  dollars,  miist  be  constracted  or  repaired, 
except  on  order  of  the  board  of  supervisors.  When  ordered  to  be  constructed 
or  repaired,  the  contract  therefor  must  be  let  out  to  the  lowest  bidder,  after 
reasonable  notice  given  by  the  board  of  supervisors,  through  the  road  overseer, 
by  i^ublication  at  least  two  weeks  in  a  county  newspaper;  and  if  none,  then  by 
three  jDOsted  notices — one  at  the  court-house,  one  at  the  point  to  be  bridged, 
and  one  at  some  other  neighboring  public  place.  The  bids  to  be  sealed,  oj)ened, 
and  the  contract  awarded  at  the  time  specified  in  the  notice.  The  contract  and 
bond  to  perform  it  must  be  entered  into  to  the  approval  of  the  board  of  super- 
visors. [Amendment,  approved  March  30,  1874;  Amendments  1873-4,  126;  took 
effect  as  indicated,  post,  2755. 

2727.  When  one  overseer  fails  to  aid,  who  may  repair  bridge. 

Sec.  2727.  If  the  road  overseer  of  one  road  district,  after  five  days'  notice 
from  the  overseer  of  an  adjoining  district  to  aid  in  the  repair  of  a  bridge  in 
which  each  are  interested,  fails  so  to  aid,  the  one  giving  notice  may  make  the 
necessary  repairs,  and  must  be  allowed  a  pro  rata  compensation  therefor  by  the 
board  of  superrisors  out  of  the  road  fund  of  the  defaulting  district. 

2728.  Overseer  failing ,  hoiv  bridge  repaired. 

Sec  2728.  If  the  overseer  of  any  road  district  chargeable  with  the  repair  of 
a  bi-idge  fails  to  make  the  needed  repairs  after  being  informed  that  a  bridge  is 
impassable  or  unsafe,  and  is  requested  to  make  the  same  by  two  or  more  free- 
holders of  the  district  in  which  it  is  situate,  or  the  two  districts  which  it  unites, 

(a)  The  original  section  did  not  have  the  last  sentence  commencing  with  the  words  "  In  the  county  of  Tehama." 

345 


2728-2732  POLITICAL  CODE. 

the  freeholders  may  represent  the  facts  to  the  board  of  suj^ervisors,  who,  upon 
being-  satisfied  that  the  bridge  is  unsafe,  must  cause  the  same  to  be  repaired, 
and  must  pay  therefor  from  the  funds  of  the  distiict  chargeable  therewith. 

2729.  Construction  of  bridge  iMitioned  for  and  notice. 

Sec.  2729.  When  a  bridge,  the  cost  of  which  will  exceed  one  hundred  dol- 
lars, is  necessaiy,  any  five  or  more  freeholders  of  the  road  districts  interested 
therein  may  jx'tition  the  board  of  suijervisors  for  the  erection  of  such  needed 
bridge.  The  board  must  thereupon  advertise  such  application,  giving  the  loca- 
tion and  other  facts,  for  two  weeks  in  a  newspaper  printed  in  the  county;  if 
none,  then  by  posters — one  at  the  proj^osed  location,  one  at  the  court-house, 
and  one  at  some  other  public  jilace  in  the  county,  and  notify  the  overseer  or 
commissioner  of  highways  to  attend  at  a  certain  time  and  place  to  hear  the 
application. 

[Amended  for  certain  counties  (see  ante  2619,  and  jDOst  2755)  as  follows:] 
Sec.  2729.  When  a  bridge,  the  cost  of  which  will  exceed  three  hundred  dollars, 
is  necessaiy,  any  five  or  more  freeholders  of  the  road  district  interested  therein 
may  petition  the  board  of  supervisors  for  the  erection  of  such  needed  bridge. 
The  board  must  thereuj^on  advertise  such  aj)plication,  giving  the  location  and 
other  facts,  for  two  weeks,  in  a  new'spajDcr  printed  in  the  county;  if  none,  then 
by  posters — one  at  the  proposed  location,  one  at  the  court-house,  and  one  at 
some  other  public  place  in  the  county,  and  notify  the  overseer  to  attend  at  a 
certain  time  and  place  to  hear  the  application.  [Ainendvient ,  ct'jypj'oved  Ilarch 
30,  1874;  Amendments  1873-4,  127;  took  effect  as  indicated,  post,  2755. 

2730.  If  found  necessary,  the  bridge  to  be  built. 

Sec.  2730.  On  the  day  fixed  to  hear  the  application,  proof  of  the  notice  given 
being  made  satisfactoiy,  the  board  must  hear  the  jDetitiou,  examine  witnesses, 
and  determine  whether  or  not  a  bridge  is  necessary  as  petitioned  for;  if  found 
to  be  so,  the  board  must  determine  the  character  of  bridge  to  be  constructed, 
prepare  plans  and  specifications,  invite  bids,  let  the  contract,  and  have  the 
same  erected,  and  provide  for  the  payment  therefor  as  herein  provided. 

2731.  Ttrporf  of  officers  to  embrace  bridges. 

Skc.  2731.  The  commissioner  of  higlnvaj's  and  road  overseers  must,  in  their 
official  reports,  give  a  full  account  of  all  bridges  of  which  they  have  in  whole 
or  in  part  the  charge  and  maintenance,  those  constructed  or  repaired,  and  the 
cost  thereof,  the  amounts  expended  thereon,  from  what  source  derived,  and  the 
present  and  prospective  condition  thereof. 

[Amended  for  certain  counties  (see  ante  2G19,  and  post  2755)  as  follows:] 
Sec,  2731,  Road  overseers  must,  in  their  official  reports,  give  a  full  account 
of  all  bridges  of  which  they  have  in  whole  or  in  part  the  charge  and  mainte- 
nance, those  constructed  or  repaired,  and  the  cost  thereof,  the  amounts  expended 
thereon,  from  what  source  derived,  and  the  present  and  prospective  condition 
thereof.  [Amendment,  approved  March  30, 1874;  Amendments  1873-4,  127;  took 
e(fect  as  indicated,  post,  2755. 

2732.  St'mi-annual  meeting  for  Uighvxiy  jmrposes. 

Si:c.  2732,  The  county  is  responsible  for  providing  and  keeping  passable  and 
in  good  rejjair  bridges  on  all  public  highways,  and  the  supervisors  must  api:)oint 
semi-annually  a  special  meeting,  at  which  the  commissioner  of  highways  and 
road  overseers,  on  days  set  apart  for  their  respective  districts,  to  hear  highway 
and  bridge  reports  and  complaints  from  officers  and  citizens,  when  such  orders 
must  be  made  and  such  action  had  regarding  the  same  as  the  public  welfare 
demands. 

[Amended  for  ceiiain  counties  (see  ante  2G19,  and  post  2755)  as  follows:] 
Sec.  2732.  The  county  is  responsible  for  providing  and  keeping  passable  and 

346 


PUBLIC  WAYS.  2732-2747 

iu  good  repair,  bridges  on  all  public  highways,  and  the  supervisors  must 
apiooint  semi-annually  a  special  meeting',  at  which  the  road  overseers,  on  days 
set  apai-t  for  their  respective  districts,  to  hear  highway  and  bridge  reports  and 
complaints  from  officers  and  citizens,  when  such  orders  must  be  made,  and 
such  action  had  regarding  the  same,  as  the  public  welfare  demands.  \Amend- 
ment,  approved  March  30,  1874;  Amendments  1873-4,  128;  look  effect  as  indicated, 
post,  2755. 

AETICLE  VIII. 

OBSTRUCTIONS    AND    INJURIES    TO    HIGHWAYS. 

2743.  Removal  of  encroachments. 

Sec.  2743.  If  any  highway  duly  laid  out  or  erected  is  encroached  upon  by 
fences,  buildings,  or  otherwise,  the  commissioner  of  highways  or  road  overseer 
of  the  district  may,  orally  or  in  writing,  require  the  encroachment  to  be  re- 
moved from  the  highway. 

[Amended  for  certain  counties  (see  ante  2619,  and  post  2755)  as  follows:] 
Sec  2743.  If  any  highway,  duly  laid  out  or  erected,  is  encroached  upon  by 
fences,  buildings,  or  otherwise,  the  road  overseer  of  the  district  may,  orally  or 
in  writing,  require  the  encroachment  to  be  removed  from  the  highway.  {Amend- 
ment, approved  3Iarch  30,  1874;  Amendments  1873-4,  128;  took  effect  as  indicated, 
I)ost,  2755. 

2744.  Notice  to  remove  encroachment. 

Sec.  2744.  Notice  must  be  given  to  the  occupant  or  owner  of  the  land,  or 
person  causing  or  owning  the  encroachment,  or  left  at  his  place  of  residence  if 
he  reside  in  the  county;  if  not,  it  must  be  posted  on  the  encroachment,  speci- 
fying the  breadth  of  the  highway,  the  place  and  extent  of  the  encroachment, 
and  requiring  him  to  remove  the  same  within  ten  days. 

2745.  Penalty  for  neglect. 

Sec.  2745.  If  the  encroachment  is  not  removed  or  commenced  to  be  removed 
and  diligently  prosecuted  prior  to  the  expii-ation  of  the  ten  days  from  the  ser- 
vice or  posting  the  notice,  the  one  who  caused  or  owns  or  controls  the  encroach- 
ment forfeits  ten  dollars  for  each  day  the  same  continues  unmoved.  If  the 
encroachment  is  such  as  to  effectually  obstruct  and  prevent  the  use  of  the  road 
for  vehicles,  the  overseer  must  forthwith  remove  the  same. 

2746.  If  encroachment  denied,  action  for  nuisance  to  he  brought. 

Sec.  2746.  If  the  encroachment  is  denied,  and  the  owner,  occupant  or  j^er- 
son  controlling  the  matter  or  thing  charged  with  being  an  encroachment  refuses 
either  to  remove  or  to  permit  the  removal  thereof,  the  commissioner  of  high- 
ways or  road  overseer  must  commence  in  the  proper  court  an  action  to  abate 
the  same  as  a  nuisance;  and  if  he  recovers  judgment,  he  may  in  addition  to 
having  the  same  abated,  recover  ten  dollars  for  eveiy  day  such  nuisance 
remained  after  notice,  as  also  his  costs  in  such  action. 

[Amended  for  certain  counties  (see  ante  2619,  and  j^ost  2755)  as  follows:] 
Sec  2746.  If  the  encroachment  is  denied,  and  the  owner,  occupant  or  person 
controlling  the  matter  or  thing  chai'ged  with  being  an  encroachment,  refuses 
either  to  remove  or  to  permit  the  removal  thereof,  the  road  overseer  must  com- 
mence, in  the  proper  court,  an  action  to  abate  the  same  as  a  nuisance;  and  if 
he  recovers  judgment,  he  may,  in  addition  to  having  the  same  abated,  recover 
ten  dollars  for  every  day  such  nuisance  remained  after  notice,  and  also  his'costs 
in  such  action.  [Amendment,  approved  3Iarch  30,  1874;  Amendments  1873-4, 
128;  took  eff^ect  as  indicated,  post,  2755. 

2747.  If  encroachment  not  denied,  how  removed. 

Sec.  2747.  If  the  encroachment  is  not  denied,  but  is  not  removed  for  five 

347 


2747-2754  POLITICAL  CODE. 

days  after  the  notice  is  complete,  the  commissioner  of  highways  or  road  over- 
seer may  remove  the  same  at  the  expense  of  the  owner,  occupant,  or  person 
controlling  the  same,  and  recover  his  costs  and  expenses,  as  also  for  each  day 
the  same  remained  after  notice  was  complete  the  sum  of  ten  dollars,  in  an  action 
for  that  purpose. 

[Amended  for  certain  counties  (see  ante  2619,  and  post  2755)  as  follows:] 
Sec  2747.  If  the  eucroachment  is  not  denied,  but  is  not  removed  for  five  days 
after  the  notice  is  complete,  the  road  overseer  may  remove  the  same  at  the 
expense  of  the  owner,  occupant,  or  person  controlling  the  same,  and  recover 
his  costs  and  expenses,  as  also  for  each  day  the  same  remained  after  notice  was 
complete  the  sum  of  ten  dollars,  in  an  action  for  that  purpose.  [Amendment, 
approved  March  30,  1874;  Amendmentfi  1873-4,  128;  took  effect  as  indicated, 
post,  2755. 

2748.  Xo  gate  allowed,  except  where. 

Sec.  2748.  No  gates  must  be  allowed  on  any  public  highway  duly  laid  out, 
except  on  highways  running  through  lands  subject  to  overflow  to  such  extent 
as  to  remove  the  fences.  When  so  allowed  they  must  be  erected  and  main- 
tained at  the  expense  of  the  owner  or  occupant  at  whose  request  or  for  whose 
benefit  they  were  erected.  If  such  expense  is  not  paid,  the  gate  must  be  re- 
moved as  an  obstruction. 

2749.  Penalty  for  leaving  open  gate  or  Hding  off  the  road. 

Sec.  2749.  Any  one  who  leaves  open  such  gate,  or  willfully  and  unnecessarily 
rides  over  ground  adjoining  the  road  on  which  the  gate  is  erected,  forfeits  to 
the  injured  party  treble  damages. 

2750.  Penalty  for  obstruction  or  injury. 

Sec.  2750.  Whoever  obstructs  or  injures  any  highway,  or  obstructs  or  diverts 
any  watercourse  thereon,  is  liable  to  a  penalty  of  five  dollars  for  each  day  such 
obstruction  or  injury  remains,  and  must  be  punished  as  i^rovided  in  section  588 
of  the  Penal  Code. 

2751.  Penally  for  injuring  milestone  and  guide-jDOst. 

Sec  2751.  Whoever  removes  or  injures  any  mileboard,  or  milestone,  or 
guide-post,  or  any  inscription  on  such,  erected  on  any  highway,  is  liable  to  a 
penalty  of  ten  dollars  for  every  such  ofiense,  and  punishable  as  provided  in 
section  590  of  the  Penal  Code. 

2752.  Eemoval  of  fallen  trees. 

Sec  2752.  Any  person  may  notify  the  occupant  or  owner  of  any  land  from 
which  a  tree  or  other  obstruction  has  fallen  upon  any  highway  to  remove  such 
tree  or  obstruction  forthwith.  If  it  is  not  so  removed  the  owner  or  occupant 
is  liable  to  a  penalty'  of  one  dollar  for  every  da}'  thereafter  till  it  is  removed 
and  the  cost  of  removal. 

2753.  Unauthorized  felling  of  trees. 

Sec  2753.  Whoever  cuts  down  a  tree  so  that  it  falls  into  any  highway,  must 
forthwith  remove  the  same,  and  is  liable  to  a  penalty  of  five  dollars  for  every 
day  the  same  remains  in  such  highway. 

2754.  Notice  on  bridge/i,  and  penalty  for  disregarding. 

Sec  2754.  The  coiumissionor  of  highways  and  road  overseers  may  put  up  on 
bridges  under  their  charge  notices  that  there  is  "  Five  dollars  fine  for  riding  or 
driving  on  this  bridge  faster  than  a  walk."  AVhoever  thereafter  rides  or  drives 
faster  than  a  walk  on  such  bridges  is  liable  to  five  dollars  for  each  offense. 
[Amended  for  certain  counties  (see  ante  2019,  and  j^ost  2755)  as  follows:] 
Sec  2754.  Road  overseers  may  put  up  on  bridges  under  their  charge  notices 
that  there  is  "Five  dollars  fine  for  riding  or  driving  on  this  bridge  faster  than 

348 


PUBLIC  WAYS.  2754-2779 

a  walk." '  "Whoever  thereafter  rides  or  drives  faster  tliau  a  walk  on  such  bridge 
is  liable  to  pay  five  dollars  for  each  ofifense.  [Amendment,  np-proved  March  30, 
1874;  Amendments  1S73— 4,  129;  took  effect  as  indicated,  post,  2755. 

275-5.  Destroying  shade  or  ornamental  ti'ees. 

Sec.  2755.  Whoever  digs  up,  cuts  down,  or  otherwise  injures  or  destroys  any 
shade  or  ornamental  tree  planted  and  standing  on  any  highway  forfeits  twenty- 
five  dollars  for  each  such  tree. 

[Amended  for  certain  counties  (see  also  ante,  2619)  as  follows:] 

Sec.  2755.  Whoever  digs  up,  cuts  down,  or  othei-wise  injures  or  destroys  any 
shade  or  ornamental  tree,  unless  the  same  maybe  deemed  an  obstruction  by  the 
road  overseer,  and  removed  under  his  direction,  planted  or  standing  on  any 
highway,  fort'eits  twenty-five  dollars  for  each  such  tree.  [Amendment,  approved 
March  30,  1874;  Amendments  1873-4,  129;  took  effect  as  indicated  beloiv. 

[The  amendatory  act  of  March  30,  1874  (Amendments  1873-4,  116),  by  the 
operation  of  which  many  of  the  foregoing  sections,  commencing  with  2G19,  were 
amended  or  repealed,  as  indicated  under  the  respective  sections,  contained  an 
additional  section,  as  follows:] 

Sec.  38.  This  act  shall  apply  only  to  the  following  named  counties:  Cala- 
veras, Santa  Barbara,  San  Luis  Obispo,  Yentura,  Fresno,  Kem,  Tehama, 
Contra  Costa,  Marin,  Lake,  Sierra,  Plumas,  -Sacramento,  Sutter,  Mendocino, 
Mariposa,  Alameda,  and  Lassen;  provided,  that  this  act  shall  not  be  in  force 
and  efi'ect  in  Solano,  Los  Angeles,  San  Joaquin,  and  Yuba  counties,  until  the 
first  Monday  of  March,  1876.  [Section  of  Amendatoi-y  Act,  approved  March  30, 
1874;  Amendments  1873-4,  129;  took  effect  on  sixtieth  day  after  passage. 

2756.  Application  of  penalties. 

Sec.  2756.  All  penalties  or  f  orieitures  given  in  this  chapter,  and  not  otherwise 
provided  for,  must  be  recovered  by  the  commissioner  of  highways  or  road  over- 
seers of  the  respective  road  districts,  and  be  ai:)plied  on  the  highways  in  which 
they  are  collected. 

2757.  Road  laics  now  in  force  not  afecfed  by  code. 

Sec  2757.  Nothing  in  this  chapter  affects  the  provisions  of  any  statute  in 
relation  to  roads  and  highways  now  in  force  and  made  applicable  to  one  or 
more  counties  by  name;  but  whenever  any  such  statute  is  repealed  then  the 
provisions  of  this  chapter  are  ajpplicable  to  the  county  named  in  the  statute 
repealed. 

CHAPTEE  in. 

TOLL    EOADS. 

Aeticxe    I.  CoNSTBrcnos  of   Toll  Eoads 2779 

II.  Use  op  Toll  Eoids,  axd  Obstbuctioxs  thekeon '281'4 

III.  Inspection  ajtd  Eepalbs 2827 

AETICLE  I. 

COSSTRrCTIO>'    OF    TOLL    EOADS. 

2779.  2\otice  of  and  application  to  construct  the  road. 

Sec.  2779.  If  all  lands  necessary  for  the  road-bed  and  other  purposes  are  not 
otherwise  acquired  as  hereinafter  provided,  the  company  proposing  to  construct 
a  toll  road  through  any  part  of  a  county  must  publish  a  notice  in  some  news- 
paper published  therein,  and  if  none,  then  the  newspaper  nearest  thereto,  once 
in  each  week  for  six  consecutive  weeks,  specifying  the  character  of  the  road,  the 
termini,  and  each  town,  city,  or  village  through  which  it  is  proposed  to  construct 
it,  and  the  time  when  the  application  hereinafter  required  will  be  made.    After 

349 


2779-2786  POLITICAL  CODE. 

such  notice  is  complete,  on  the  day  sj^ecified  therein,  application  must  be  made 
to  the  board  of  supervisors  of  the  county  for  authority  to  take  the  necessary 
land  and  to  construct  the  road  described  in  the  notice. 

2780.  Special  meeting  of  supervisors. 

Sec.  2780.  On  application  therefor  the  president  of  the  board  of  supervisors 
may  call  a  special  meeting  to  hear  the  application,  ten  days'  notice  thereof  being 
served  on  each  of  the  other  supervisors,  either  i^ersonally  or  by  leaving  it  at  his 
place  of  residence,  if  absent;  the  expense  of  such  special  meeting  and  serving 
notices  must  be  paid  bj-  the  aj^plicant. 

2781.  Hearing  the  application. 

Sec.  2781.  On  the  hearing,  all  residents  of  the  county  and  others  interested 
may  appear  and  be  heard.  The  board  may  take  testimony,  or  authorize  it  to 
be  taken  by  any  officer  of  the  county,  and  adjoui*n  the  hearing  from  time  to 
time. 

2782.  Action  of  supervisors. 

Skc.  2782.  If  it  appears  to  the  board  of  supervisors  that  the  public  interests 
vrill  be  promoted  thereby,  a  majority  of  all  the  members  thereof  may  grant  the 
application,  and  by  order  authorize  the  company  to  take  the  real  property 
necessary,  and  appoint  two  commissioners  to  lay  out  the  road,  who  are  disin- 
terested either  in  the  company  or  in  any  land  sought  to  be  taken  or  adjoining 
thereto.  A  coj^y  of  this  order  must  be  recorded  in  the  county  clerk's  office 
before  action  under  it  is  had. 

2783.  Commissioners,  how  appointed  for  other  counties  and  by  corporation. 

Sec.  2783.  If  the  route  extends  into  more  than  one  county  the  application 
must  specify  their  names,  and  the  board  of  supervisors  of  each  of  such  coun- 
ties must  ajipoint  commissioners  to  act  in  their  respective  counties  with  the 
commissioner  and  surveyor  of  the  company.  The  company  must  appoint  one 
commissioner  of  like  qvialification  as  those  appointed  by  the  board  of  supervi- 
sors, and  furnish  a  surveyor  to  accomj)any  and  act  with  them. 

2784.  Laying  out  the  road. 

Sec.  2784.  The  commissioners  must  take  the  oath  of  office,  and  view  and  lay 
out  the  road  as  in  their  judgment  will  best  promote  the  public  interest.  They 
must  hear  all  persons  interested,  and  may  take  testimony;  they  may  determine 
the  breadth  of  the  way,  not  exceeding  one  hundred  feet,  except  where  the  com- 
pany acquire  a  greater  breadth  by  grant.  They  must  make,  sign,  and  certify 
an  accurate  survey  and  description  of  the  route  and  of  the  land  necessary  for 
the  road,  buildings,  and  gates  in  each  county,  and  record  the  same  in  the  office 
of  the  county  clerk  thereof.  When  the  breadth  of  the  road  is  not  fixed  by  the 
commissioners  it  may  be  fixed  by  the  commissioner  of  highways  or  the  board 
of  supervisors  of  the  county. 

2785.  Compensation  of  commissioners,  map  and  report. 

Sec.  2785.  The  company  must  pay  to  each  commissioner  his  expenses  and 
four  dollars  a  day  for  his  services ;  cause  their  surveyor  to  make  the  maj)  of  the 
projiosed  road,  which,  wlien  approved  and  certified  by  the  commissioners,  must 
be  filed  with  the  report  in  the  office  of  the  clerk  of  the  board  of  supervisors 
and  recorded. 

2786.  Branches  and  extensions. 

Sec  278G.  The  directors  of  any  such  company  may,  with  the  written  consent 
of  the  holders  of  two  thirds  of  the  stock,  proceed  in  the  manner  prescribed  by 
the  preceling  seven  sections  to  construct  branches  to  their  road,  or  to  extend  it 
or  alter  any  jiart  of  its  route  or  branches. 

350 


PUBLIC  WAYS.  2787-2795 

2787.  Acquiring  lands  by  grant. 

Sec.  2787.  Lands  necessary  for  tlie  purposes  of  the  road  or  appurtenances 
may  be  acquired  by  jjurchase  or  condemnation.  Lands  within  any  hif^hway 
may  be  granted  by  the  boartl  of  supervisors  or  town  or  cit}'  authorities  on  such 
terms  and  for  such  sums  as  may  be  agreed  upon. 

2788.  Appropriation  of  damages /or  higlnvays  taken. 

Sec.  2788.  When  the  road  company  desires  the  exclusive  use  of  lands  forming' 
part  of  a  highway,  and  such  use  is  granted  by  the  supervisors,  the  damages 
received  therefor  are  to  be  paid  to  the  road  fund  of  the  road  district  in  which 
the  same  is  situated. 

2789.  Application,  when  unnecessary. 

Sec  2789.  When  the  company  has  obtained  all  the  lands  necessary  in  any 
county,  by  purchase  or  agreement,  the  road  may  be  constructed  without  making 
the  ajiplication  to  the  board  of  supervisors  hereinbefore  provided  for;  but  before 
proceeding  to  do  so  an  accurate  survey  of  such  part  of  the  road  must  be  made 
by  a  practical  surveyor,  signed  and  sworn  to  bj^the  president  and  secretary,  and 
recorded  in  the  county  clerk's  office;  and  if  the  road  extends  into  another 
county,  authority  to  construct  the  road  there  must  be  first  obtained. 

2790.  Orchards  and  gardens. 

Sec.  2790.  No  such  road  must  be  laid  out  through  any  orchard  of  four  years 
growth,  to  the  injury  of  the  fruit  trees,  or  any  garden  of  four  years  cultivation, 
or  any  dwelling-house  or  building  connected  with  a  dwelling-house,  or  any  yard 
or  inclosure  necessary  thereto,  without  the  consent  of  the  owner. 

2791.  Bridging  streams. 

Sec.  2791.  The  road  company  may  bridge  any  stream  or  river  on  the  route  of 
their  road,  when  not  within  the  limits  prescribed  by  law  for  the  erection  and 
maintenance  of  any  other  bridge;  and  in  bridging  streams  used  for  rafting 
lumber  the  bridge  must  be  so  constructed  as  not  to  prevent  or  endanger  the 
passage  of  any  raft  forty  feet  in  width. 

2792.  One  road  coiy oration  using  the  road-bed  of  another. 

Sec.  2792.  No  j)lank-road  company  must  construct  its  road  on  the  road  of 
another  company,  excej)t  in  case  of  crossings,  without  consent  of  the  latter. 

2793.  How  to  be  constructed. 

Sec  2793.  Every  such  road  must  be  laid  out  at  least  fifty  feet  wide.  The 
track  of  plank  roads  must  be  constructed  eighteen  feet  wide,  of  timber,  plank 
or  other  hard  material.  The  track  of  turnpikes  must  be  bedded  with  stone, 
gravel  or  such  other  hard  material  found  on  the  line  thereof,  to  the  width  of 
eighteen  feet,  and  faced  with  broken  stone  or  gravel.  The  common  wagon  road 
must  be  graded  at  least  twelve  feet  in  width,  and  so  constructed  with  necessary 
turnouts  as  to  permit  vehicles  to  pass  each  other  conveniently.  All  the  roads 
must  be  ditched  on  the  sides  when  practicable,  and  have  jiroper  and  necessary 
sewerage,  and  be  so  constructed  that  vehicles  may  j)ass  on  and  off  the  track  at 
all  intersections  of  roads. 

2794.  May  relay  with  what. 

Sec  2794.  Eveiy  com}Dany  that  has  once  laid  their  road  with  plank  may  relay 
it  or  any  part  of  it  with  broken  stone,  gravel,  shells  or  other  hard  material 
whereby  they  keep  a  good,  substantial  road. 

2795.  Milestones  and  posts. 

Sec  2795.  A  milestone  or  post  must  be  maintained  at  every  mile,  with  an 
inscription  showing  the  distance  from  the  commencement  of  the  road.  If  the 
road  commences  at  the  end  of  any  other  road,  or  intersects  therewith,  having 
milestones  or  posts  on  which  the  distance  from  any  city  or  town  is  marked,  a 
continuation  of  that  distance  must  also  be  inscribed. 

351 


2796-2801  POLITICAL  CODE. 

2796.  Guide-posts. 

Sec.  2796.  A  guide-post  must  be  erected  at  every  place  where  the  road  is  in- 
tersected by  a  public  road,  with  an  inscription  showing  the  name  of  the  place 
to  which  such  intersecting  road  leads,  in  the  direction  to  which  the  name  on  the 
guide-post  points. 

2797.  Inspection,  certificate,  and  completion. 

Sec.  2797.  When  the  road,  or  three  consecutive  miles  thereof,  is  completed, 
the  commissioner  of  highways,  or  such  road  overseer  or  other  person  thereto 
specially  appointed  by  the  board  of  supervisors  of  the  county,  must  iiispect  the 
road  when  requested,  and  if  satisfied  that  the  road  conforms  to  the  requirements 
of  the  law,  must  certify  to  the  facts  and  file  the  certificate  in  the  oifice  of  the 
county  clerk;  for  such  service  four  dollars  per  day  must  be  by  the  company  joaid 
to  the  inspector  or  commissioner.  When  only  three  miles  of  any  plank  road  are 
completed,  if  it  is  not  the  entire  road,  tolls  must  not  be  collected  thereon  for 
more  than  one  year,  unless  the  road  or  five  consecutive  miles  are  completed 
within  the  year. 

2798.  Erection  of  gates,  etc. 

Sec.  2798.  When  the  certificate  of  completion  is  filed  toll  gates  may  be 
erected  and  tolls  collected.  No  toll  gate,  toll  house,  or  other  building  must  be 
put  up  within  ten  rods  of  the  front  of  any  dwelling-house,  barn  or  outhouse, 
without  the  written  consent  of  the  owner  thereof. 

2799.  Abandonment  of  road,  and  what  becomes  of  it. 

Sec.  2799,  Whenever  the  holders  of  two  thirds  of  the  stock  consent,  the  di- 
rectors of  any  company  may  abandon  the  whole  or  any  part  of  their  road  at 
either  or  both  ends,  by  written  surrender  thereof,  attested  by  their  seal,  and 
acknowledged  by  the  president  and  secretary  as  a  deed  or  grant  is  acknowl- 
edged, and  recorded  in  the  clerk's  office  of  each  county  where  the  surrendered 
road  lies;  thereafter  the  surrendered  road  belongs  to  the  road  districts  in  which 
it  lies,  but  the  company  may  continue  to  take  toll  on  any  three  consecutive 
miles  in  length  not  so  surrendered. 

2800.  County  may  purchase  road,  how. 

Sec.  2800.  At  any  time  within  five  years  from  filing  the  certificate  of  comple- 
tion of  any  road  constructed  under  the  provisions  of  this  chapter  the  county 
within  which  the  road  or  any  part  thereof  is  located  may  purchase  the  same  at 
a  fair  cash  valuation,  to  be  fixed  by  seven  commissioners,  all  disinterested  per- 
sons, three  to  be  appointed  by  the  board  of  supervisors  of  the  county,  three  by 
the  owner  of  the  road,  and  the  seventh  by  the  county  judge,  who  must  estimate 
the  fair  cash  value  of  the  road  and  make  report  thereof  under  oath  to  the  board 
of  supervisors.  If  within  three  months  after  filing  the  report  the  ai:>praised 
value  thereof  is  tendered  on  behalf  of  the  county  to  the  owner  of  the  road,  or 
his  authorized  managingagent,  in  gold  coin,  the  right  of  the  owner  to  take  tolls 
on  the  road  is  terminated,  and  the  road  becomes  the  property  of  the  county. 

2801.  How  the  appraisement  and  award  is  made,  and  its  effect. 

Sec  2801.  A  majority  of  the  board  of  commissioners  mentioned  in  the  j)re- 
ceding  section  constitute  a  quorum,  and  the  concurrence  of  a  majority  in 
making  the  estimate  and  award  is  binding  upon  the  road  owner  if  approved  by 
the  board  of  supervisors.  The  commissioners  must  make  their  report  within 
thirty  days  after  their  apjiointment,  and  if  approved,  the  tender  of  the  amount 
of  the  appraisement  and  award  must  be  made  by  the  county  treasurer;  whether 
the  owner  conveys  the  road  to  the  county  or  not,  the  report  and  tender  operate 
as  a  conveyance  to  the  county  of  the  road  and  all  its  incidents  and  appur- 
tenances. 

352 


PUBLIC  WAYS.  2814-2828 

AKTICLE  II. 

USE    OP    TOLL    EOADS,    AND    OBSTRUCTIONS    THEREON. 

2814.  Persons  exempt  frovi  tolls. 

Sec.  2814.  The  followmg  persons,  and  none  other,  are  exempt  from  payment 
of  toll  on  wagon,  turnpike,  or  plank  roads: 

1.  Persons  going  to  and  from  any  funeral,  and  all  funeral  processions; 

2.  Troops  in  actual  service  of  the  state  or  of  the  United  States,  and  persons 
going  to  or  from  a  militia  training  which  by  law  they  are  required  to  attend; 

3.  Persons  going  to  or  from  the  court-house  in  obedience  to  a  subpoena  in 
a  criminal  action; 

4.  Persons  living  within  a  mile  of  any  gate  by  the  most  usuall}^  traveled  road 
may  pass  it  at  one  half  toll,  when  not  engaged  in  the  transportation  of  others 
or  the  proj)erty  of  others; 

5.  Farmers  living  on  their  farms  within  one  mile  of  any  gate  by  the  most 
usually  traveled  road  may  pass  free  when  going  to  or  from  their  work  on  such 
farms; 

6.  School  children  attending  school  within  three  miles  of  their  j)arental  or 
boarding  houses. 

2815.  Encroachments,  hoiv  removed. 

Sec.  2815.  On  application  by  an  officer  of  the  company  the  commissioner  of 
highways  or  road  overseer  of  the  district  where  the  same  exists,  may  inquire 
into  any  encroachment  ujjon  the  lands  of  the  company  used  for  the  i:)urposes  of 
the  road,  caused  by  fence,  building,  or  otherwise,  and  he  must,  if  he  finds  it 
does  exist,  require  or  cause  its  removal  as  provided  for  highway  encroachments 
in  Article  VIII,  Chapter  II  of  this  Title. 

2816.  Who  liable  for  penalty,  and  lohat. 

Sec.  2816.  Every  person  who,  having  the  control  thereof,  neglects  to  remove 
an  encroachment  after  being  notified  thereof,  or  permits  the  same  to  remain 
after  notice,  unless  he  immediately  commences  and  diligently  prosecutes  its 
removal  to  coniiDletion,  is  Hable  to  a  i^enalty  of  five  dollars  for  every  day  of 
such  neglect  or  failure. 

2817.  Action  for  penalty  or  trespass. 

Sec  2817.  An  action  for  the  penalties  given  by  this  chapter,  and  for  any 
trespass  on  or  injury  to  such  road  may  be  maintained  in  the  county  where  the 
act  was  done,  or  in  that  where  the  defendant  resides,  by  the  company. 

AETICLE  III. 

INSPECTION    AND    REPAIRS. 

2827.  Inspection  of  roads,  by  xohom,  and  how  repairs  to  be  made. 

Sec  2827.  Every  commissioner  of  highways  or  road  overseer  of  the  district 
to  whom  complaint  in  writing  is  made  that  any  part  of  a  wagon,  turnpike,  or 
plank  toll  road  in  his  county  or  district,  or  any  part  of  such  road,  the  gate 
nearest  to  which  is  in  his  county  or  district,  is  out  of  repair,  must  examine  it 
without  delay  and  give  notice  of  the  defect,  particularly  describing  the  same, 
to  the  person  attending  the  gate  nearest  thereto;  if  the  necessary  repair  is  not 
made  or  defect  remedied  within  three  days  after  such  notice  is  given  the  com- 
missioner or  road  overseer  may  order  such  gate  to  be  thrown  open. 

2828.  Closing  gates,  and  penalty. 

Sec  2828.  A  gate  so  ordered  to  be  thrown  open  must  not  be  shut  nor  any 
toll   collected  thereat  until  the  commissioner  of  highways  or  road  overseer 
23  353 


2288-2843  POLITICAL  CODE. 

ordering  it  shut  grants  a  certificate  that  the  road  is  in  sufficient  repair,  and 
that  the  gate  ought  to  be  closed.  The  company  and  their  gatekeeper  or  other 
employee,  violating  or  i)ermittiug  the  violation  of  this  section,  or  the  order 
made  under  the  preceding  section;  are  each  liable  in  a  penalty  of  twenty -five 
dollars  for  each  offense,  to  be  recovered  by  the  party  aggrieved. 

2829.  Defects  in  road,  to  be  reported  to  whom. 

Sec.  2829.  Every  commissioner  of  highways  or  road  overseer  who  discovers 
a  defect  in  any  toll  road  in  his  cotinty  or  district,  or  a  gate  placed  in  a  situa- 
tion contrary  to  law,  must  give  written  notice  thereof  to  one  or  more  of  the 
dii-ectors  or  managing  agents  of  the  comjjany,  requiring  the  defective  road  to 
be  repaired,  or  the  gate  to  be  removed,  within  a  specified  time;  and  may  order 
that  in  the  meantime  such  gates  as  he  specifies  be  thrown  open. 

2830.  Enforcing  obedience  to  notice  and  requirement. 

Sic.  2830.  If  the  notice  and  requirements  are  not  obej'ed,  the  commissioner 
of  highways  or  road  overseer  must  make  immediate  complaint  to  the  district 
attorney  of  the  county,  who  must  prosecute  the  company  therefor  in  the  name 
of  the  people  for  so  suffering  the  road  to  be  out  of  repair,  or  of  having  placed 
any  gate  in  a  situation  contrary  to  the  law;  and  if  convicted  thereof,  the  com- 
pany must  be  fined  not  exceeding  two  hundred  and  fifty  dollars. 

2831.  Fees  of  commissioner  or  overseer,  ivhat,  and  how  paid. 

Sec.  2831.  The  commissioner  of  highways  or  road  overseer  complaining  to 
the  district  attorney,  or  who  makes  inspection  and  discovers  defects  in  tberoad, 
is  entitled  to  three  dollars  for  each  day's  services  in  inspecting  the  road,  or 
necessarily  expended  in  prosecuting  the  action  therefor,  to  be  paid  in  case  of 
conviction  as  costs.  When  no  action  is  had,  but  repairs  are  made,  or  gate  re- 
moved, on  the  inspection  and  requirement  of  the  commissioner  of  highways  or 
road  overseer,  the  toll  gatherer  nearest  the  road  so  out  of  repair,  or  the  gate  to 
be  moved,  must  pay  the  fees  hereinbefore  sj)ecified  out  of  the  tolls  collected  ; 
if  he  refuse  to  jiay  the  same,  the  same  may  be  recovered  by  action,  with  costs. 

2832.  Pack  frails  in  mountain  district,":. 

Sec.  2832.  The  boards  of  sujoervisors  of  the  several  counties  of  this  state  are 
hereby  authorized  to  permit  the  toll  road  companies  heretofore  or  which  may 
hereafter  be  organized  under  the  provisions  of  this  code,  for  the  purpose  of 
constnicting  toll  roads  within  the  mountain  districts  of  this  state,  to  first  con- 
struct on  the  line  of  their  proposed  toll  road  a  pack  trail  for  the  accommoda- 
tion of  pack  trains  and  horsemen,  and  to  collect  tolls  thereon  ;  the  board  of 
supervisors  shall  fix  the  amount  of  license  to  be  paid  and  tolls  to  be  collected 
on  such  pack  trail,  and  that  no  such  permit  or  franchise  shall  be  granted  for  a 
longer  period  than  two  years.  [New  section,  approved  March  30,  1874  ;  Amend- 
ments 1873-4,  131  ;  took  effect  from  passarje. 

CHAPTER  IV. 

PUBLIC   FERRIES  AND   TOLL  BRIDGES. 

AUTICLB      I.    GENEHATi   PbOVLSIONS 2843 

II.  Toll  Bridges. 2.S70 

III.  Toll  Febeies 2892 

ARTICLE  I. 

GENERAL    PROVISIONS. 

2843.    What  hoard  to  grant  authorlly  to  construct. 

Sec.  2843.  "When  authority  to  construct  a  toll  bridge  or  to  erect  and  keei?  a 

354 


PUBLIC  WAYS.  2843-2848 

ferry  over  waters  dividing  two  counties  is  desired,  application  must  be  made  to 
the  board  of  supervisors  of  that  county  situated  on  the  left  bank  descending 
sucli  bay,  river,  creek,  slough,  or  arm  of  the  sea. 

2844.  Notice  must  he  proved. 

Sec.  2844.  The  board  of  suj)ervisors  must  not  grant  authority  to  construct  or 
erect  a  toll  bridge  or  ferry  until  the  notice  of  such  intended  application  has 
been  given  as  respectively  required  in  Articles  II  and  III  of  this  chaj)ter. 

2845.  Duty  of  the  hoard  of  supervisors  granting  authority. 

Sec.  2845.  The  board  of  supervisors  granting  authority  to  construct  a  toll 
iaridge  or  to  keep  a  public  ferry,  must  at  the  same  time  : 

1.  Fix  the  amount  of  a  penal  bond  to  be  given  by  the  person  or  corjioration 
owning  or  taking  tolls  on  the  bridge  or  feriy  for  the  benefit  of  the  county  and 
all  persons  crossing  or  desiring  to  cross  the  same,  and  provide  for  the  annual 
renewal  thereof ; 

2.  Fix  the  amount  of  license  tax  to  be  paid  by  the  person  or  corporation  for 
taking  tolls  thereon,  not  less  than  three  nor  over  one  hundred  dollars  per  month, 
payable  annually; 

3.  Fix  the  rate  of  tolls  which  may  be  collected  for  crossing  the  bridge  or 
ferry,  which  must  not  raise  annually  an  income  exceeding  fifteen  per  cent,  on 
the  actual  cost  of  the  construction  or  erection  and  maintenance  of  the  bridge 
or  ferry  for  the  first  year,  nor  on  the  fair  cash  value  together  with  the  rej)airs 
and  maintenance  thereof  for  any  succeeding  year; 

4.  Make  all  necessary  orders  relative  to  the  construction,  erection,  and  busi- 
ness of  licensed  toll  bridges  or  ferries  which  they  have  by  law  the  power  to 
make.  The  board  of  supervisors  ma}',  at  any  time  they  see  fit,  authorize  and 
maintain  fords  across  any  water  within  any  distance  of  any  licensed  toll  bridge 
or  ferry. 

2846.  License  tax  and  rate  of  tolls,  how  fixed. 

Sec.  2846.  The  license  tax  and  rate  of  toll  fixed  as  j^rovided  in  the  preceding 
section  must  not  be  increased  or  diminished  during  the  term  of  twenty  years, 
at  any  time,  unless  it  is  shown  to  the  satisfaction  of  the  board  of  supervisors 
that  the  receipts  from  tolls  in  any  one  year  is  disproportionate  to  the  cost  of 
construction  or  erection,  or  the  fair  cash  value  thereof,  together  with  the  cost 
of  all  necessary  repairs  and  maintenance  of  the  bridge  or  ferry.  The  license  tax 
fixed  by  the  board  of  supervisor's  must  not  exceed  ten  per  cent,  of  the  tolls 
annually  collected. 
2347.   Report  ofhi'idge  or  ferry  owner  or  keeper. 

Sec.  2847.  Every  owner  or  keeper  of  a  toll  bridge  or  ferry  must  report  annu- 
ally to  the  board  of  supervisors  from  which  his  license  is  obtained,  under  oath, 
the  following  facts: 

1.  The  actual  cost  of  the  construction  or  ei'ection,  and  equipment  of  the  toll 
bridge  or  ferry; 

2.  The  repairs  made  during  the  preceding  year,  and  the  actual  cost  thereof; 

3.  The  exjjense  of  labor  and  hire  of  agents,  and  other  costs  necessarily 
incurred  in  and  about  the  conduct  of  their  business; 

4.  The  amount  of  tolls  collected;  and, 

5.  The  estimated  actual  cash  value  of  the  bridge  or  feriy,  exclusive  of  the 
franchise. 

2848.  Inquiry  of  hoard  of  supervisors  fixing  tolls. 

Sec  2848.  "Whenever  the  board  of  supervisors  are  about  to  fix  the  license  tax 
and  rate  of  tolls  on  a  bridge  or  ferry  they  must  make  inquiry  into  the  present 
actual  cash  value  and  the  cost  of  all  necessary  repaii's  and  maintenance  thereof, 
and  for  that  purpose  may  examine,  under  oath,  the   owner  or  keeper  of  the 

355 


2848-2853  POLITICAL  CODE. 

same,  and  other  witnesses,  and  the  assessed  vahie  of  the  bridge  or  ierrj  on  the 
assessment  roll  of  the  county.  "When  the  estimate  of  the  board  is  made,  if  the 
same  is  not  agreed  to  by  the  owner  or  keeper  of  the  bridge  or  feriy,  the  same 
must  be  fixed  by  three  commissioners,  one  to  be  appointed  by  the  board  of 
supervisor^,  one  by  the  owner  and  keeper,  and  the  third  by  the  county  judge, 
who  must  hear  testimouy  and  fix  such  value  and  cost  according  to  the  facts,  and 
report  the  same  to  the  board  of  supenisors  under  oath.  In  all  estimates  of  the 
fair  cash  value  of  the  bridge  or  ferij  the  value  of  the  franchise  must  not  be 
taken  into  consideration. 

2849.  TI7i''?i  to  direct  license  to  issue. 

Sec.  284:9.  When  the  cost  of  construction  or  erection  and  equipment  of  the 
bridge  or  ferry,  or  the  fair  cash  value  thereof,  together  with  the  cost  of  needed 
repair's  and  the  conduct  and  maintenance  of  the  same,  is  ascertained  and  fixed 
for  the  preceding  year,  the  board  must  on  such  ascertained  amount  fix  the 
annual  license  tax  rate  of  tolls,  aud  the  amount  of  the  penal  bond,  and  direct  a 
license  to  be  issued  by  the  clerk. 

An  Act  to  enforce  the  collection  of  license  taxes. 

Approved  March  21,  1872;  1871-2,  539. 

Delinquent  ferry  and  bridge  license  tax. 

Section  1.  Whenever  any  person  who  is  required  by  law  to  pay  a  ferry  or 
bridge  license  tax  neglects  to  pay  the  same  for  the  period  of  thirty  days  after 
the  same  is  due  or  payaltle,  the  collector  of  such  taxes  must  notify  the  district 
attorney  thereof,  who  must  at  once  institute  proceedings  against  such  person. 

Sec.  2.  This  act  shall  be  in  force  from  and  after  its  passage. 

2850.  Bond,  conditions  and  execution. 

Sec.  2850.  The  bond  required  of  the  owner  or  keeper  of  the  toll  bridge  or 
ferry  must  be  in  the  sum  fixed  by  the  board  of  supervisors,  with  one  or  more 
sureties,  and  conditioned  that  the  toll  bridge  or  ferry  will  be  kept  in  good 
repair  and  condition,  and  that  the  keeper  will  faithfully  comply  with  the  laws 
of  the  state  and  all  legal  orders  of  the  board  of  supervisors  regulating  the 
same,  and  pay  all  damages  recovered  against  him  by  any  person  injured  or 
damaged  by  reason  of  delay  at  or  defect  in  such  bridge  or  ferry,  or  in  any 
manner  resulting  from  a  non-compliance  with  the  laws  or  lawful  orders  regu- 
lating the  same.  The  bond  must  be  approved  by  the  president  and  filed  with 
the  clerk  of  the  board  of  supervisors. 

2851.  When  bridge  imites  tiuo  coitnties. 

Sec  2851.  The  license  tax  for  a  ferry  or  bridge  connecting  two  counties 
must  be  paid  to  the  treasurer  of  the  county  granting  it,  and  the  license  issued 
by  the  auditor  thereof;  but  the  treasurer  of  such  county  must  pay  to  the 
treasury  of  the  county  in  which  the  other  end  or  landing  of  the  bridge  or  feny 
is  located  one  half  the  sum  so  received  annually,  or  the  auditor  may  issue  the 
license  on  filing  with  him  receii)ts  for  their  respective  halves  of  the  tax  taken 
from  the  treasurer  of  each  of  the  two  counties. 

2852.  ^Vllen  Ijoard  divided,  countg  judge  to  act. 

Sec.  2852.  When  a  supervisor  is  interested  in  an  application  to  erect,  con- 
struct, or  take  tolls,  or  alter  tolls  on  a  bridge  or  ferry,  the  county  judge  of  the 
county  must  act  in  his  stead. 

2853.  Toll  bridge  or  ferry  within  one  mile  of  aiwther,  tnhen. 

Sec.  2853.  No  toll  bridge  or  feny  must  be  established  within  one  mile  im- 
mediately above  or  below  a  regularly  established  feny  or  toll  bridge,  unless 
the  situation  of  a  town  or  village,  the  crossing  of  a  public  highway,  or  the 
intersection  of  some  creek  or  ravine  rendfrs  it  necessary  for  public  convenience. 

350 


PUBLIC  WAYS.  2853-2871 

In  addition  to  the  public  notice  hereinafter  required,  notice  of  intention  to 
apply  for  authority  to  erect  a  toll-bridge  or  ferry,  as  in  this  section  provided, 
must  be  served  upon  the  proprietor  of  the  ferry  or  toll  biidge  already  estab- 
lished at  least  ten  days  prior  thereto,  giving  the  time  and  place  and  grounds  of 
such  application. 

2854.  Oivner  of  land  preferred  to  build,  bridge  or  ferry. 

Sec.  2854.  The  owner  of  land  on  either  side  of  the  waters  to  be  crossed,  and 
the  owner  of  the  land  on  the  left  bank  descending  over  the  owner  of  land  on 
the  right  bank,  is  entitled  to  preference  in  procuring  authority  to  construct  a 
bridge  or  ferry;  but  where  such  owner  fails  or  neglects  to  apply  for  such 
authority  within  a  reasonable  time  after  the  necessity  therefor  arises,  the  board 
of  sujjervisors  may  grant  such  authority  to  another. 

2855.  How  lands  acquired  for  use  of  bridge  or  ferry. 

Sec.  2855.  When  there  are  lands  necessary  for  the  construction,  erection,  or 
use  of  such  bridge  or  ferry  which  cannot  be  procured  bj'  agreement  between 
the  owner  or  corporation  and  the  landowner,  the  right  of  way  and  all  other 
lands  necessary  for  the  use  and  construction  or  erection  thereof  may  be  ac- 
quired by  condemnation. 

2856.  Must  post  i-ates  of  toll. 

Sec.  2856.  Every  licensed  toll  bridge  or  ferry  must  have  the  rates  of  toll,  as 
fixed  by  the  board  of  supervisors,  printed  or  written,  posted  up  in  some  con- 
spicuous place  on  or  near  the  bridge  or  feiTy. 

2857.  Revenue  derived  from  license,  how  disposed  of. 

Sec.  2857.  The  proceeds  of  the  license  tax  on  ferries  and  toll  bridges  must  be* 
paid  into  the  county  treasury  for  the  use  of  roads  and  highways,  or  may  be  used 
by  the  board  of  supervisors  at  any  time  in  the  purchase  of  toll  roads  and  toll 
bridges. 

2858.  To  keep  banks  in  repair. 

Sec  2858.  All  ferry  and  toll  bridge  keepers  must  keep  the  banks  of  the 
streams  or  waters  at  the  landings  of  their  ferries  or  bridges  graded  and  in  good 
order  for  the  j^assage  of  vehicles.  For  every  day  compliance  herewith  is 
neglected  twenty-five  dollars  is  forfeited,  to  be  collected  for  the  use  of  the  road 
fund  of  the  county. 

AETICLE  II. 

TOLL   BRIDGES. 

2870.  Application  for  leave  to  construct. 

Sec  2870.  Every  applicant  for  authority  to  construct  a  toll  bridge  must  pub- 
lish a  notice  in  at  least  one  newspaper  in  each  county  in  which  the  bridge  or 
any  part  of  it  is  to  be,  or  if  no  paper  is  published  therein,  in  an  adjoining 
county,  once  in  each  week  for  six  successive  weeks,  specifying  the  location,  the 
length  and  breadth  of  the  bridge,  and  the  time  at  which  the  application  herein- 
after required  will  be  made.  After  notice  is  given,  application  must  be  made 
to  the  board  of  supervisors  of  the  proper  county,  at  any  meeting  specified  in  the 
notice,  for  authority  to  construct  it. 

2871.  Hearing  application. 

Sec  2871.  On  the  hearing,  any  person  may  appear  and  be  heard.  The  board 
may  take  testimony  or  authorize  it  to  be  taken  by  any  judicial  officer  of  the 
county;  and  it  may  adjourn  the  hearing  from  time  to  time.  A  copy  of  the  arti- 
cles of  incorporation,  certified  by  the  secretary  of  state,  or  by  the  clerk  where 
they  are  filed,  must  be  attached  to  and  filed  with  the  application  if  made  by  a 
corporation. 

357 


2872-2878  POLITICAL  CODE. 

2872.  Adion  of  hoard  of  supei'visoj's. 

Sec.  2872.  If  the  board  are  of  opinion  that  the  public  interests  -svill  be  pro- 
moted thereby,  it  may,  by  the  assent  of  a  majorit}'  of  all  the  members  of  the 
board,  grant  the  application  by  an  order  entered  in  its  minutes,  and  particu- 
larly describing  the  bridge.  The  applicant  must  cause  a  certified  copy  of  the 
order,  with  a  copy  of  the  application,  to  be  recorded  in  the  office  of  the  clerk 
of  the  county  before  jjroceeding  under  it. 

[The  following  act,  though  by  its  title  supplemental  to  an  act  which  has  been 
sui)erseded,  is  supposed  to  be  in  force:] 

An  Act  supplemental  to  an  act  entitled  "An  Act  snpi^lementary  to  an  act  concerning  public 
ferries  and  toll  bridges,  ap])roved  April  28,  1855,"  approved  April -4,  1870. 

Approved  March  24,  1874;  1873-4,  581. 

No  bridges  on  certain  i-iveis  and  slreayns. 

Section  1.  Boards  of  supervisors  shall  not  have  power  to  license  bridges 
across  the  Sacramento  or  San  Joaquin  rivers,  the  Petaluma,  Napa,  or  Sonoma 
creeks,  except  at  points  above  the  head  of  navigation  on  said  streams. 

Sec.  2.  This  act  shall  be  in  force  from  and  after  its  passage. 

2873.  W}iat  board  of  superviaors  may  require. 

Sec.  2873.  The  board  of  supervisors  may,  at  the  time  of  granting  authority  to 
construct  a  toll  bridge,  by  order,  require  the  bridge  to  be  constructed  within  a 
certain  time,  to  be  of  a  certain  width,  character,  or  description,  and  to  be  con- 
structed of  certain  materials,  which  order  must  be  complied  with  by  the  owner 
or  corporation  constructing  the  same  before  license  to  take  tolls  is  issued. 

2874.  Use  ofhighicays. 

Sec  2874.  The  corporation  or  bridge  owner  ma}'  use,  in  such  manner  as  pre- 
scribed by  the  be  ard,  so  much  of  any  j^ublic  road  'on  either  side  of  the  stream  or 
waters  as  may  be  necessary  for  constructing  and  maintaining  the  bridge  and 
toll  houses. 

2875.  Hoic  constructed  over  navigable  luaterfi. 

Sec.  2875.  All  bridges  constructed  under  this  chapter  crossing  navigable 
streams  must  be  so  constructed  as  not  to  obstruct  navigation,  and  must  have  a 
draw  or  swing  of  sufficient  sj^ace  or  span  to  permit  the  safe,  convenient,  and 
expeditious  passage  at  all  times  of  any  steamer,  vessel,  or  raft  which  msiy  navi- 
gate the  stream  or  water  bridged. 

2876.  Supervisors  may  regulate  iveigld,  number,  and  attendance. 

Sec  287G.  The  board  of  supervisors  may,  by  order,  regulate  and  govern  the 
amount  of  weight  and  number  of  animals  that  may  be  driven  on  to  a  toll 
bridge  at  any  one  time,  and  prescribe  rules  for  the  government  of  the  draws  or 
swings  and  attendance  of  the  same,  and  prescribe  penalties  for  disobedience  of 
such  rules. 

2877.  Channel  of  streams  navigable  by  rafts  to  be  kept  clear. 

Sec.  2877.  Any  one  bridging  a  stream  navigated  or  navigable  must  at  all  times 
keep  the  channel  above  and  below  the  bridge  clear  from  all  deposits  occasioned 
by  its  erection  and  prejudicial  to  such  navigation,  and  is  liable  to  pay  to  all 
persons  unreasonably  hindered  or  delayed  in  passing  such  bridge  with  rafts 
or  vessels  all  damages  sustained  therebj'. 

2878.  Completion  of  bridge,  rate  of  toll,  and  license  tax. 

Sec  2878.  Every  bridge  erected  under  these  provisions  must  have  good  and 
substantial  railings  or  sidings,  at  least  four  and  a  half  feet  high.  When  a  bridge 
is  completed,  and  a  certificate  that  it  is  so,  and  is  safe  and  convenient  for  the 
public  use,  is  signed  by  the  commissioner  of  highways  or  president  of  the 

358 


PUBLIC  WAYS.  2878-2894 

board  of  supervisors,  find  filed  iu  the  eountj^  clerk's  office  in  the  county  or 
counties  in  which  it  is  located,  the  directors  or  owner  may  erect  a  toll  gate  at 
such  bridge  and  require  such  tolls  as  the  boards  of  supervisors  of  the  county 
or  counties  from  time  to  time  i^rescribe.  A  license  therefor  must  be  issued  by 
the  auditor  of  the  county  on  giving  the  necessary  bond  and  paying  the  license 
tax  fixed  therefor. 

2879.  Persons  exempt. 

Sec.  2879.  Any  person  going  to  or  from  a  funeral,  school,  performing  high- 
way labor,  or  attending  a  military  jjarade,  or  court  which  by  law  he  is  required 
to  attend  as  a  witness  in  a  criminal  case,  is  exempt  from  the  j^ayment  of  tolls.    • 

2880.  Penalty  for  avoiding  tolls. 

Sec.  2880.  Any  person  liable  to  pay  toll,  forcibly  or  fraudulently  passing  the 
gate  of  a  toll  bridge  without  paying  the  toll  is  liable  to  a  penalty  of  ten  dollars 
iu  addition  to  the  damages  caused,  to  be  recovered  by  the  owner. 

2881.  County  may  purchase  toll  bridge. 

Sec.  2881.  Within  the  same  time,  in  like  manner,  and  to  the  same  effect  as 
toll  roads  are  purchased  under  the  j^rovisions  of 'sections  2802  and  2803,  the 
county  or  counties,  jointly  acting,  in  which  the  same  is  situated,  may  purchase 
a  toll  bridge  constructed  under  the  provisions  of  this  chapter. 

ARTICLE  III. 

TOLL    FERRIES. 

2892.  Application  for  leave  to  erect,  and  notice. 

Sec  2892.  Every  aj^plicant  for  authority  to  erect  and  take  tolls  on  a  public 
ferry  must  publish  a  notice  in  at  least  one  newspaper  in  each  county  in  which 
the  ferry  is  or  touches,  or  if  there  is  no  newspaper  j)ublished  therein,  then  in 
one  published  in  an  adjoining  county,  and  by  posting  three  notices  in  three 
public  places  in  the  township  for  four  successive  weeks,  specifj'ing  the  location 
and  the  time  and  j^lace  when  and  where  the  apj)lication  will  be  made.  After 
notice  is  given  application  must  be  made  in  writing,  under  oath,  to  the  board 
of  supervisors  of  the  proper  county,  the  landings  of  the  proposed  ferry  must 
be  described,  and  the  names  of  the  owners  thereof  given,  if  known;  and  if  the 
applicant  is  not  the  owner  of  the  land,  that  notice  of  the  application  has  been 
sensed  on  the  owner  thereof  at  least  ten  days  prior  to  the  application. 

2893.  Duty  of  board  of  supervisors. 

Sec.  2893.  At  the  hearing,  jjroof  of  giving  the  notice,  as  required  by  the 
preceding  section,  must  be  made,  and  any  person  may  appear  and  contest  the 
application.  If  the  board  finds  that  the  ferry  is  either  a  public  necessity  or 
convenience,  and  that  the  applicant  is  a  suitable  person,  and  by  reason  of  own- 
ership of  the  landing  or  failure  of  the  owner  thereof  to  apply  is  entitled  thereto, 
authority  to  erect  and  take  tolls  on  the  ferry  may  be  granted  to  him  for  the  term 
of  twenty  years. 

2894.  Powers  of  board  of  supervisors. 

Sec.  2894.  The  board  of  suj)ervisors  may  make  all  needful  rules  and  regu- 
lations for  the  government  of  ferries  and  ferry  keepers,  prescribing: 

1.  How  many  boats  must  be  kept,  their  character,  and  how  propelled; 

2.  The  number  of  hands,  boatmen,  or  ferrymen  to  be  employed,  and  rules 
for  their  government; 

3.  How  many  trips  to  be  made  daily; 

4.  When  and  under  what  circumstances  to  make  trips  in  the  night  time; 

5.  AVho  may  be  feri'ied  free  of  toll; 

6.  In  what  cases  of  danger  or  peril  not  to  cross; 

859 


289^2910  POLITICAL  CODE. 

7.  Penalties  for  Tiolation  of  regulations; 

8.  In  case  of  steamboats,  the  rate  of  s^^eed; 

9.  The  method  of  and  preference  in  loading  and  crossing;  and, 

10.  How  and  by  whom  action  must  be  brought  to  recover  jDenalties. 

2895.  Penalties,  how  disposed  of. 

Sec.  2895.  Penalties  recovered  under  this  article  must  be  paid  to  the  county 
treasurer  for  the  use  of  the  general  road  fund  of  the  county. 

CHAPTEK  V. 

WHARVES,  CHUTES,  AND   PIERS. 

2906.  Board  of  supervisors  to  authorize  construction. 

Sec.  290G.  The  boards  of  supervisors  of  every  county  in  this  state  may  grant 
authority  to  any  person  or  corporation  to  construct  a  wharf,  chute,  or  pier,  on 
any  lands  bordering  on  any  navigable  bay,  lake,  inlet,  creek,  slough,  or  arm  of 
the  sea,  situate  in  or  bounding  their  counties  respectively,  with  a  license  to 
take  tolls  for  the  use  of  the  same  for  the  term  of  twenty  years. 

2907.  Application,  ivhai  to  contain  and  hoiv  made. 

Sec.  2907.  Application  therefor  must  be  made  by  publishing  notice  as 
required  in  section  2892,  and  filing  a  petition  in  writing,  containing: 

1.  The  name  and  residence  of  the  applicant;  and  if  a  corporation,  a  certified 
copy  of  the  articles  of  incorporation; 

2.  A  map  of  the  waters,  and  the  name  and  location  thereof,  and  of  the 
adjoining  lands; 

3.  A  plan  of  the  wharf,  chute,  or  pier  proi:)Osed  to  be  constructed,  and  of  the 
land  within  three  hundred  feet  thereof; 

4.  The  names  of  the  owners  of  the  lands,  and  the  quantity  thereof  sought  to 
be  used,  and  whether  the  right  to  use  the  same  is  or  is  to  be  acquired  by  the 
appUcaut; 

5.  The  distance  it  is  proposed  to  extend  the  wharf,  chute,  or  pier  into  the 
waters ; 

G.  The  estimated  cost  of  the  construction  of  the  wharf,  chute,  or  pier;  and, 
7.  The  time  when  the  application  will  be  made. 

2908.  What  petition  to  contain,  relative  to  lands  not  owned  by  applicant. 

Sec.  2908.  "When  any  lands  are  sought  to  be  appropriated  and  used  for  a 
wharf,  chute,  or  inev,  of  which  the  applicant  is  not  the  owner,  or  the  right  of 
way  and  use  thereof  has  not  been  obtained  by  agreement,  these  facts  and  the 
particular  description  of  such  land  must  be  set  forth  in  the  petition  of  the 
applicant,  and  a  copy  of  the  notice  of  application  must  be  served  on  the  owner 
thereof  by  the  sheriff  of  the  county,  whose  official  return  is  conclusive  evidence 
of  service,  at  least  ten  days  prior  to  the  appointed  day  set  for  the  hearing  of 
the  same. 

2909.  J<!otice  to  he  served  on  representatives  of  certain  persons. 

Sec.  2909.  "When  the  owner  of  the  land  is  a  non-resident  of  the  count}'  it  is 
service  of  notice  for  the  sheriff  to  leave  a  copy  with  the  occupant  or  agent  of 
the  owner;  if  none,  then  to  place  a  cojiy  in  the  post-office  addressed  to  the 
owner  thirty  days  prior  to  the  day  set  for  the  hearing.  If  the  owner  is  a  minor, 
insane,  idiot,  or  decedent,  notice  must  be  served  on  the  guardian,  adminis- 
trator, or  other  legal  representative  of  such  person. 

2910.  Hoard  to  hear  proof,  and  may  grant  authority. 

Sec.  2910.  On  the  day  named  in  the  notice,  or  to  which  the  hearing  is  ad- 
journed, the  board  of  supers'isors  must  hear  proof  of  publication  and  service  of 

3G0 


PUBLIC  WAYS.  2910-2916 

notice;  if  satisfactory,  the  board  must  hear  the  allegations  of  the  petition  and 
any  objections  to  the  granting  of  the  application,  and  j)roofs  in  support  of 
each.  If  from  the  proofs  it  appear  that  the  public  good  or  convenience  will  be 
promoted  thereby,  the  board  of  supervisors  may  grant  to  the  applicant  the 
right  to  erect  or  construct  a  wharf,  chute,  or  pier  as  prayed  for,  and  to  take 
tolls  for  the  use  of  the  same  for  the  term  of  twenty  years. 

2911.  Overflowed  or  tide  lands  granted. 

Sec.  2911.  The  grant  of  authority  made  by  the  board  of  supervisors,  as  pro- 
vided in  the  preceding  section,  conveys  to  the  grantee  or  applicant  the  right  of 
way  and  all  necessary  use  for  the  jjurposes  of  the  wharf,  chute,  or  pier,  of  any 
of  the  overflowed,  submerged,  or  tide  lands  belonging  to  the  state,  particularly 
describing  the  quantity  thereof  in  the  order,  as  also  the  right  of  way  over  any 
swamp,  overflow^ed,  marsh,  or  tide  lands  lying  between  the  wharf,  chute,  or 
pier  and  high  or  dry  land,  fifty  feet  in  width,  for  twenty  years. 

2912.  One  hundred  and  Jifty  feet  on  each  side  of  wharf,  etc. 

Sec.  2912.  The  grant  of  authority  herein  provided  for  carries  with  it  the 
right  to  have  unincumbered  and  unobstructed  the  land  and  water  on  each  side 
of  the  wharf,  chute,  or  pier,  from  high  watermark  to  navigable  water,  a  distance 
of  one  hundred  and  fifty  feet,  for  the  convenience  of  landing,  loading,  and 
unloading  vessels,  but  for  no  other  purpose. 

2913.  Hoiv  to  obtain  use  of  lands. 

Sec.  2913.  Authority  to  construct  a  wharf,  chute,  or  pier  being  granted,  the 
grantee  or  applicant  may  procure  from  the  owner  the  right  of  way  and  other 
necessary  incidental  use  for  the  wharf,  chute,  or  pier,  of  any  of  his  lands,  by 
proceedings  had  under  Title  VII,  Part  III,  of  The  Code  of  Civil  Proceduke. 
Until  such  use  of  the  lands  held  adversely  is  obtained  by  agreement,  or  by  the 
proceedings  hereinbefore  mentioned,  there  is  no  authority  to  construct  a  wharf, 
chute,  or  pier,  or  to  take  tolls  thereon. 

[The  part  of  the  Code  of  Civil  Procedure  referred  to  will  be  found,  post, 
11,237.] 

2914.  Seventy  five  feet  in  width. 

Sec  2914.  The  wharf,  chute,  or  pier  must  not  be  of  a  greater  width  than 
seventy-five  feet,  and  may  extend  to  navigable  water,  but  not  so  far  as  in  any- 
wise to  impede  or  obstruct  the  free  navigation  of  the  water  on  which  the  same 
is  situated. 

2915.  Franchise,  what  to  constitute. 

Sec.  2915.  The  orders  granting  authority,  and  agreements,  contracts,  deeds, 
and  decrees  of  courts  granting  the  right  of  way  and  other  use  of  lands,  must 
be  filed  and  recorded  in  the  office  of  the  recorder  of  the  county  where  the 
wharf,  chute,  or  pier  is  situate,  and  constitutes  the  franchise  of  the  applicant. 
The  fees  of  the  recorder,  as  also  the  fees  of  the  clerk,  sheriff,  and  other  offi- 
cers, for  services  rendered,  must  be  paid  by  the  applicant. 

2916.  Board  of  supervisors  to  fix  rale  of  tolls,  etc. 

Sec.  2916.  The  board  of  supervisors  must  fix  the  rate  of  tolls  or  wharfage  for 
the  use  of  the  wharf,  chute,  or  pier  annually,  which  must  not  produce  an  in- 
come of  less  than  fifteen  per  cent,  per  annum  nor  more  than  twenty-five  per 
cent,  per  annum  on  the  fair  cash  value  of  the  wharf,  chute,  or  pier,  and  on  the 
cost  of  rej^air  and  maintenance  thereof  exclusive  of  the  amount  paid  for  license 
imposed  by  the  next  section.  Such  value  and  cost  of  repair  and  maintenance 
to  be  fixed  by  the  board  of  supervisors  when  levying  the  rates  of  tolls  or  wharf- 
age, by  hearing  evidence  and  examining  the  assessment  rolls  of  the  county. 
When  fixed,  the  rates  must  be  furnished  the  owner,  and  a  printed  or  written 

361 


2916-2933  POLITICAL  CODE. 

coi^y  thereof  conspicuously  posted  on  the  wharf,  chute,  or  pier.     [Amendment, 
approved  March  2^,  1876;  Amendments  ISlo-Q),  ^'2;  took  effect  immediatehj }^'^ 

2917.  License,  and  the  tax  for. 

Sec.  2917.  When  the  wharf,  chute,  or  pier  is  completed  and  the  tolls  or 
wharfage  fixed,  the  ow'ner  is  entitled  to  a  license  to  take  the  tolls  thereon  for 
the  term  of  one  year,  to  be  issued  by  the  county  auditor  on  the  payment  of  such 
license  tax  as  the  board  of  supervisors  may  fix,  which,  excej^t  that  for  the  first 
year,  must  not  be  more  than  ten  per  cent,  of  the  gross  receipts  for  tolls  or 
"wharfage  for  the  j)revious  3'ear,  to  be  paid  to  the  county  treasury  for  general 
road  jDurjJoses. 

2918.  To  keep  in  good  repair. 

Sec  2918.  Any  owner  or  keeper  of  a  wharf,  chute,  or  pier  who  takes  toll  or 
wharfage  for  the  use  of  the  same  when  not  in  good  repair,  or  is  unsafe  or  dan- 
gerous, forfeits  the  sum  of  twenty-five  dollars,  to  be  recovered  by  order  of  the 
board  of  supei-visors  granting  authority  to  construct  it,  for  the  use  of  the  gen- 
eral road  fund  of  the  county,  and  is  liable  for  all  damages  occasioned  thereby. 

2919.  Ilestrictions  on  granting  authority. 

Sec  2919.  No  avithority  must  be  granted  under  this  chaj^ter  to  interfere  with 
vested  rights,  nor  to  interfere  with  or  infringe  grants  heretofore  made  by  state 
authority;  nor  does  authority  to  construct  a  wharf,  chute,  or  pier  continue  for 
a  longer  period  than  two  years,  unless  the  same  is  within  that  time  comjDleted. 

2920.  Cities  and  toions  incorporated  exempted  and  authorized. 

Sec.  2920.  The  lands  of  the  state  situate  in  the  city  and  county  of  San  Fran- 
cisco, and  those  otherwise  disposed  of  or  situate  within  the  limits  of  any  incor- 
porated town  or  city  of  this  state,  are  excluded  from  the  jDrorisions  of  this 
ohai:)ter.  The  municij^al  authorities  of  any  incorporated  city  or  town  other 
than  San  Francisco  may  grant  authority  to  construct  wharves,  chutes,  and  piers, 
as  is  herein  provided  fgr  the  board  of  supervisors. 

CHAPTER  VI. 

MISCELLANEOUS   PROVISIONS   RELATING   TO   PUBLIC  WAYS. 

2931.  Laics  of  the  highway. 

Sec.  2931.  "When  vehicles  meet,  the  drivers  of  each  must  turn  seasonably  to 
the  right  of  the  centre  of  the  highway,  so  as  to  pass  without  interference,  under 
a  penalty  of  twenty-five  dollars  for  every  neglect,  to  be  recovered  by  the  party 
injured.  "Where  the. whole  breadth  of  a  roadway  is  not  worked,  the  centre  of 
the  worked  part  is  to  be  deemed  the  centre  of  the  highway.  In  time  of  snow, 
where  there  is  a  beaten  track,  the  centre  of  that  is  to  be  deemed  the  centre  of 
the  highway.  But  this  section  does  not  apply  to  vehicles  meeting  cars  running 
on  rails  or  grooved  tracks. 

2932.  Driver  addicted  to  intoxication. 

Sec.  2932.  No  person  must  employ  to  drive  any  vehicle  for  the  conveyance 
of  passengers  upon  any  public  highway  a  person  addicted  to  drunkenness, 
under  penalty  of  five  dollars  for  eveiy  day  such  person  is  in  his  emi:)loyment. 

2933.  Notice  to  employer  of  driver's  intoxication. 

Sec  2933.  If  any  driver,  whilst  actually  employed  in  driving  any  such 
vehicle,  is  intoxicated  to  such  a  degree  as  to  endanger  the  safety  of  his  pas- 
sengers, the  owner,  on  receiving  from  any  such  passenger  a  written  notice  of 

(a)  The  oriffinal  (section  did  not  have  the  words  "  nor  posed  by  the  next  Bection,"  nor  the  words  "  and  cost  of 
more  than  twcntj'-five  per  cent,  per  unnuru,"  nor  tho  repair  and  niaintennnce."  Instead  of  "  and  on  "  It  had 
words  "  exclusive  of  the  amount  paid  for  license  im-     the  word  "  including." 

3G2 


PUBLIC  WAYS.  2933-2938 

the  fact,  verified  by  liis  oath,  must  fortlnvitli  discharge  such  driver;  and  if  ho 
has  such  driver  in  his  service  within  six  months  after  such  notice  he  incurs  a 
like  i)enalty. 

2934.  Horses  to  he  fastened  ivliile  standing. 

Sec.  2934.  The  driver  of  any  vehicle  used  to  convey  passengers  must  not 
leave  the  horses  attached  thereto  while  passengers  remain  in  the  same  without 
first  securely  fastening  the  horses  or  jDlacing  the  lines  in  the  hands  of  some 
other  person,  so  as  to  prevent  their  running,  under  a  penalty  of  twenty  dollars 
for  each  offense. 

2935.  Penalties,  hoiv  and  by  whom  recovered. 

Sec.  2935.  The  jDcnalties  provided  by  the  three  preceding  sections  are  to  be 
recovered  by  the  district  attorney  of  the  county  in  which  the  offender  resides, 
for  the  use  of  the  county  road  fund.  Any  action  for  a  penalty  incurred  under 
the  last  section  must  be  commenced  within  six  months. 

2936.  Liability  of  oioners  for  damages  done  by  drivers. 

Sec  2936.  The  owner  of  every  vehicle  running  or  traveling  upon  any  road 
for  the  conveyance  of  passengers  is  liable  for  all  damages  to  persons  or  prop- 
erty done  by  any  person  in  his  employment  as  a  driver  while  driving  such 
vehicle,  whether  done  willfully  or  negligently,  or  otherwise,  in  the  same  man- 
ner as  such  driver  would  be  liable. 

2937.  Exceptions  to  iweceding  sections. 

Sec.  2397.  Nothing  contained  in  the  six  preceding  sections  must  affect  any 
law  concerning  hackney  coaches  or  carriages  in  any  city,  nor  affect  laws  or  ordi- 
nances of  any  city  for  the  licensing  or  regulating  such  coaches  or  carriages. 
2933.  Protection  of  bridges. 

Sec.  2938.  The  owner  of  any  toll  bridge  and  any  plank  road  company  owning 
a  bridge  of  not  less  than  twenty  feet  sjian  may  j)ut  up  conspicuously  at  each 
end  of  it  notice  in  these  words  in  large  characters:  "  Five  dollars  fine  for  riding 
or  driving  on  this  bridge  faster  than  a  walk; "  and  whoever  rides  or  drives  faster 
than  a  walk  on  such  bridge  forfeits  to  the  owner  the  sum  of  five  dollars. 


363 


2949-2950  POLITICAL  CODE. 


TITLE  VII. 

<5t\mai  JJolirc  of  tl)e  Stale. 

Chapter  I.    Immigration 2949 

II,    Preservation  of  the  Public  Health 2978 

m.    Registry  of  Births,  Marriages,  and  Deaths 3074 

IV.    Dissection 3093 

V.    Cemeteries  and  Sepulture  ...    3105 

VI.    Lost  and  Unclaimed  Property 3136 

VII.    Marks  and  Brands 3167 

VIII.    Weights  and  Measures 3209 

IX.    Labor  and  Materials  on  Public  Buildings 3233 

X.    Hours  of  Labor 3244 

XI.    Time 3255 

XII.    Monet  of  Account 3272 

XIII.  Auctions 3284 

XIV.  Fires  and  Firemen 3335 

XV.    Licenses 3356 

CHAPTER  I. 

IMMIGRATION. 

2949.  Duties  of  masters  of  vessels  arriving  in  California. 

Sec.  2949.  Within  twenty-four  hours  after  the  arrival  of  any  vessel  arriving 
at  any  of  the  ports  of  this  state,  bringing  j^assengers  from  any  j^lace  out  of  this 
state,  the  master  of  such  vessel  must  make  on  oath  to  the  commissioner  of 
immigration  at  such  port  a  written  report. 

2950.  Form  of  report. 

Sec.  2950.  The  report  must  state: 

1.  The  name,  place  of  birth,  last  residence,  age,  and  occupation  of  all  such 
passengers  who  are  not  citizens,  or  who  shall  have,  within  the  last  preceding 
twelve  months,  arrived  from  any  country  out  of  the  United  States,  and  who 
have  not  been  examined,  bonded,  or  paid  commutation  money,  as  provided  in 
this  chapter,  or  have  been  landed  from  any  such  vessel,  at  any  place  during  her 
last  voyage,  or  who  'have  gone  on  board  of  any  vessel  with  the  intention  of 
coming  into  this  state,  or  who  may  have  died  during  the  last  voyage  of  such 
vessel;  and, 

2.  Whether  any  of  the  j^assengers  so  reported  are  lunatic,  idiotic,  deaf,  dumb, 
blind,  crippled,  infirm,  or  are  lepers,  or  persons  affected  with  any  of  the  diseases 
known  as  leprosy  or  elephantiasis; 

3.  The  names  and  residences  of  the  owners  of  such  vessel.  [Amendment, 
apjjroved  March  25,  187G;  Amendments  1875-G,  53;  took  effect  immediately.'-''^ 

(o)  OriRlnal  section:  Idiotic,  deaf,  dumb,  blind,  crippled,  or  infirm,  and  not 

Sec. 'ii950.  The  report  must  state:  accompanied  by  any  relatives  able  to  support  them.    3. 

1.  The  name,  place  of  birth,  lust  residence,  age  and  Who  may  have  died  during  the  last  voyage  of  such 

occupation  of  all  such  passengers  who  are  not  citizens,  vessel;  and  4.  The  name  and  residence  of  the  owner 

or  who  shall  have,  within  the  last  preceding  twelve  of  such  vessel. 

months,  arrived  from  any  country  out  of  the  United  It  was  jireviously  amended  by  act  of  March  30,1874; 

States,  and  who  have  not  been  bonded  or  paid  commu-  Amendnniits   lH7;i-4,  if."},  so  as  to   make   three  subdl- 

tatiou  money,  as  provided  in  this  chapter,  as  have  been  visions,  by  adding  the  words  of  tlie  third  to  the  end  of 

landed  from  any  such  vessel  at  any  place  during  her  the  first  as  in  the  text,  and  by  adding  to  the  end  of  the 

last  voyage,  or  who  have  gone  on  board  of  any  vessel  second  the  words  "  or  are  lewd  or  abandoned  women;" 

•with    the   intention   of    coming    Into   this   state.     2.  In  other  respects  it  was  like  the  original. 
Whether  any  of  the  passengers  bo  reported  are  lunatic, 

364 


GENERAL  POLICE  OF  STATE.  2951-2954 

2951.  Oath  to  be  administered  to  certain  passengers. 

Sec.  2951.  The  master  or  commander  of  the  vessel  must  administer  to  any 
passenger  of  foreign  birth,  who  declares  himself  a  citizen  of  the  United  States, 

the  following  oath :  "  I, ,  do  solemnly  swear  (or  aiSrm)  that  I  was  Lorn 

in ;  that  I  am  a  naturalized  citizen  of  the  United  States;  that  I  was  natural- 
ized and  received  my  certificate  of  natui'alization  in  the  state  of  ,  in  the 

year ." 

[Sees.  2952  and  2953,  as  originally  adopted/"'  were  repealed  by  act  approved 
March  30,  1874;  Amendments  1873-4,  39,  and  a  single  new  section  substituted 
in  their  place.     This  substituted  section  was  amended  in  187G,  as  follows:] 

2952.  Lazarettos  for  lepers. 

Sec.  2952.  It  shall  not  be  lawful  for  lepers  or  persons  affected  with  leprosy 
or  elephantiasis  to  live  in  ordinary  intercourse  with  the  population  of  this  state; 
but  all  such  persons  shall  be  compelled  to  inhabit  such  lazarettos  or  lepers' 
quarters  as  may  be  assigned  to  them  by  the  board  of  supervisors  of  the  city  or 
county  in  which  they  shall  be  domiciled  or  settled;  and  the  board  of  super- 
visors are  vested  with  power  and  are  required  to  make  all  necessary  provisions 
for  the  separation,  detention  and  care  of  lepers  or  persons  affected  with  leprosy 
or  elephantiasis  settled  or  domiciled  in  their  respective  cities  or  counties.  The 
superintendent  or  manager  of  all  lej^ers'  quarters  under  this  chapter  shall 
forward  quarterly  statements,  showing  the  name,  age,  sex,  and  birthplace  of  each 
lejDer  in  such  quarter  to  the  secretary  of  state,  who  shall  keep  a  proper  record 
of  such  matters  for  the  information  of  the  public.  [Amendment,  approved 
March  25,  1876;  Amendments  1875-6,  53;  took  effect  immediately.'-^^ 

2954.  Nature  of  bond. 

Sec  2954.  The  bond  required  by  the  next  preceding  section  must  be  a  sep- 
arate bond  for  each  passenger,  and  the  same  sureties  must  not  be  upon  more 
than  one  bond.  Each  bond  must  be  secured  by  two  or  more  sufficient  sureties, 
residents  of  the  state,  each  of  whom  must  prove,  before  the  commissioner  of 

(o)  Repealed  Bections:  charge,  or  likely  soon  to  become  bo.  or  is  a  convicted 
Sec.  2952.  The  commissioner  of  immigration,  by  an  criminal,  or  a  lewd  or  debauched  woman;  no  person 
Indorsement  on  the  report,  may  require  the  owner  or  who  shall  belong  to  either  class,  or  who  possesses  any 
consignee  of  the  vessel  from  which  such  passengers  of  the  infirmities  or  vicfs  specified  herein,  shall  be 
have  been  landed  to  give  a  joint  and  several  bond  to  permitted  to  land  in  this  state,  unless  the  master, 
the  people  of  the  State  of  California,  in  a  penalty  of  owner  or  consignee  of  said  vessel  shall  give  a  joint  and 
five  hundred  dollars,  for  each  passenger  included  in  several  bond  to  the  people  of  the  State  of  California,  in 
Buch  report,  conditioned  to  indemnify  and  save  harm-  the  penal  sum  of  five  hundred  dollars  in  gold  coin  of 
less  every  county,  town  or  city,  in  this  state,  against  all  the  United  States,  conditioned  to  indemnify  and  save 
costs  and  expenses  which  may  be  by  them  necessarily  harmless  every  county,  city  and  county,  town  and  city 
Incurred  for  the  relief,  support  or  medical  care  of  the  of  this  state  against  all  costs  and  expenses  which  may 
persons  named  in  the  bond,  within  two  years  from  the  be  by  them  necessarily  incurred  for  the  relief,  sup- 
date  of  such  bond.  port,  medical  care,  or  any  expense  whatever,  resulting 
Sec.  29r)3.  Whenever  there  is  among  the  passengers  from  the  infirmities  or  vices  herein  referred  to,  of  the 
any  lunatic,  idiot,  deaf,  dumb,  blind,  cripple  or  infirm  persons  named  in  said  bonds,  within  two  years  from 
person  not  members  of  families,  or  who  are  likely  to  the  date  of  said  bonds;  and  the  commissioner  of  immi- 
become  permanently  a  public  charge,  or  who  have  gration  shall  receive  from  the  master,  owner  or  con- 
been  paupers  in  any  other  country,  or  who  from  sick-  signee  of  every  vessel  which  shall  bring  any  passen- 
ness  or  disease  existing  either  at  the  time  of  sailing  gers  (who  are  of  foreign  birth  and  not  naturalized) 
from  the  port  of  departure  or  at  the  time  of  their  ar-  from  any  foreign  port  or  place,  the  sum  of  seventy 
rival  in  this  state  are  a  public  charge,  or  likely  soon  to  cents  for  every  passenger  examined  by  him  as  afore- 
become  so,  the  commissioner,  in  his  indorsement,  or  said,  which  said  sum  shall  be  appnipriated  by  said 
by  a  subsequent  indorsement  (made  at  any  time  within  commissioner  as  fees  and  compensation  for  said  ser- 
twenty  davs  after  the  landing  of  such  passenger),  vices;  and  if  such  sum  shall  not  be  paid  within  three 
must  require,  in  addition  to  the  bond  provided  for  by  days  after  the  arrival  of  said  vessel,  the  commissioner 
the  preceding  section,  that  the  owner  or  consignee  of  may  bring  suit  at  law  to  recover  the  same  against  the 
Bueh  vessel  execute  for  every  such  passenger  a  further  master,  owner,  consignee  and  vessel,  or  either  of  them, 
bond,  joint  and  several,  to  the  people  of  this  state  in  jointly  or  severally,  for  the  recovery  of  said  sum,  and 
the  sum  of  one  thousand  dollars,  conditioned  and  se-  every  judgment  thus  obtained  against  said  parties  shall 
cured  in  the  same  manner  as  the  bond  in  the  preceding  be  a  lien  upon  said  vessel ;  and  if  the  master,  owner  or 
section.  consignee  of  said  vessel  shall  fail  or  refuse  to  execute 
(6)  Original  substituted  section:  the  bond  herein  required  to  be  executed,  they  are  re- 
Sec.  29.52.  The  commissioner  of  immigration,  to  sat-  quired  to  retain  such  person  on  board  "'  snul  vessel 
iBfy  himself  whether  or  not  any  passenger  who  shall  until  said  vessel  shall  leave  the  port,  and  then  con- 
arrive  in  this  state  by  vessels  from  any  foreign  port  or  vey  said  passengers  from  this  state;  and  if  said  mas- 
place  (who  is  not  a  citizen  of  the  United  States),  is  ter,  owner,  or  consignee  shall  lailor  refuse  to  pertorm 
lunatic,  idiotic,  deaf,  dumb,  blind,  crippled  or  infirm,  the  duty  and  service  last  herein  enjoined,  or  shall 
and  is  not  accompanied  by  relatives  who  are  able  and  permit  said  passengers  to  escape  from  said  vessel  and 
willing  to  support  him,  or  is  likely  to  become  perma-  land  in  this  state,  they  shall  forfeit  to  the  state  the 
nently  a  public  charge,  or  has  been  a  pauper  in  any  sum  of  five  hundred  dollars  m  gold  coin  of  the  United 
other  country,  or  is,  from  sickness  or  disease  existing  States  for  each  passenger  so  escaped,  to  be  recovered 
either  at  the  time  of  sailing  from  the  port  of  departure  by  suit  at  law. 
or  at  the  time  of  his  arrival  in  this  state,  a  public 

365 


2954-2955  POLITICAL  CODE. 

immigration,  by  oatli  or  otlierwise,  iuclorsed  in  writing  on  such  bond,  that  be  is 
a  freeholder  and  resident  of  the  state,  and  is  worth  doulile  the  amount  of  the 
penalty  of  the  bond  in  real  estate,  over  and  above  all  his  debts  and  liabilities. 
The  bond  may,  at  the  option  of  the  party,  be  secured  by  mortgage  on  real 
estate,  or  by  the  pledge  and  transfer  of  United  States  bonds,  or  controller's 
warrants  of  this  state,  in  any  amount  sufficient  to  secure  the  same.  [Amend- 
ment, approved  March  ZO,  1874;  Amendments  1873-4,  41;  took  effect  immediatehj}^'^ 

[Sec.  2955,  as  originally  adopted,^''^  was  repealed  by  act  approved  March 
30,  1874;  Amendments  1873-4,  41;  took  effect  immediately;  but  it  was  re- 
enacted  and  amended  in  1876,  as  follows:] 

2955.  Examination  and  disposition  of  lepers — Fees. 

Sec.  2955.  The  commissioner  of  immigration  must  satisfy  himself  whether  or 
not  any  j^erson  who  shall  arrive  in  this  state,  by  vessel  from  any  foreign  j)ort 
or  place,  is  a  leper,  or  affected  with  the  disease  known  as  leprosy  or  elephan- 
tiasis, before  such  person  shall  mingle  with  the  population  of  this  state.  For 
the  purjDOse  of  ascertaining  said  fact  the  commissioner  is  vested  with  the  power 
and  authority  to  detain  all  such  persons  on  board  any  such  vessel  so  arriving, 
and  to  assign  the  vessel  to  a  berth  or  anchorage  separate  and  aj)art  from  other 
vessels,  and  at  a  safe  and  suitable  distance  from  the  shore,  if  in  his  judgment  it 
shall  be  necessar}',  until  such  fact  can  be  fully  ascertained  by  him.  Such  fact 
shall  be  ascertained  by  personal  inspection  and  examination  of  each  and  every 
person  on  board  such  vessel;  and  the  commissioner  of  immigration  is  author- 
ized, empowered,  and  required  to  make  such  i:)ersonal  inspection  and  examina- 
tion of  all  persons  so  arriving  by  any  such  vessel,  the  same  to  be  made  at  such 
berth  or  anchorage  as  he  shall,  in  his  discretion,  assign  to  such  vessel  for  that 
purpose,  and  shall  be  made  before  the  landing  of  any  person  thereupon.  All 
of  such  jiersons  who,  upon  inspection  and  examination,  are  found  to  be  lepers, 
or  affected  with  the  disease  known  as  leprosy  or  elephantiasis,  «hall  be  taken  in 
charge  by  the  commissioner  of  immigration,  and  placed  in  a  suitable  lazaretto, 
or  lejjers'  quarter,  to  be  provided  or  designated  b}^  the  board  of  su2)ervisors, 
whenever  necessary  for  that  j)urj)Ose,  as  hereinbefore  prescribed,  and  there 
detained  and  j^roperly  cared  for,  separate  and  apart  from  the  general  population 
of  this  state,  so  long  as  they,  the  said  lepers,  shall  elect  to  remain  in  the  State 
of  California,  or  until  they  shall  have  recovered  from  said  disease,  and  no 
longer.  All  of  such  persons  as  shall  be  found  to  be  free  from  said  disease  shall 
be  allowed  to  depart  and  go  at  their  will,  without  unnecessary  detention  or 
delay,  and  shall  be  entitled  to  receive  a  certificate  of  the  fact  of  their  freedom 
from  said  disease  from  said  commissioner.  For  his  services  in  making  such 
examination  and  inspection  the  commissioner  of  immigration  shall  demand  and 
collect  from  the  master,  owner,  or  consignee  of  such  vessel  the  sum  of  seventy 
cents  in  U.  S.  gold  X)r  silver  coin,  for  each  and  every  person  so  examined  or 
inspected,  which  sum,  except  four  thousand  dollars  a  year  and  expenses  of 
office,  shall,  when  required  for  such  purpose,  be  paid  by  the  commissioner  into 
the  state  treasuiy,  to  be  used  in  the  maintenance,  when  necessary,  of  such 
lazarettos  or  lepers'  quarters  as  shall  be  constructed  under  this  law.  Any 
master,  owner,  or  consignee  of  any  vessel  arriving  at  any  port  of  this  state  who 
shall  fail  or  refuse  to  perform,  or  permit  the  performance  of  any  of  the  acts  or 

(a)  The  original  section  had  the  -words  "  either  of  every  pnssenger  reported.    Upon  the  payment  of  such 

the  two  next  preceding  sections,"  instead  of  "the  next  commutation  money  and  filing  with  the  controller  of 

preceding  so-tion."  Btato  the  nueipt  of  the  coiiiniiHHiouer  tliirtfor  liy  ihe 

[h)  Repfaled  section:  party  piiying  the  same,  such  party  Khiill  not  be  required 

Seo.  'i'JSS.  Within  three   days  after  the  landing  of  to  give  bomls.     The  controller  of  state  must  tile  such 

such  pnssenger  from  any  vessel  the  master  or  com-  receipts  in  his  office,  and  compare  the  same  with  the 

mander,  the  owner  or  consignee  of   the  vessel,  may  accounts  of   the  several   conimissiouers  of  immigra- 

4ommute  for  the  bonds  required  by  this  chajjter  by  tion,  when  rendered  mouthly. 
aying  to  the  commissioner  the  sum  of  five  dollars  for 

3G6 


GENERAL  POLICE  OF  STATE.  2955-2958 

tilings  required  by  this  chapter,  or  to  take  and  occupy  with  his  vessel  the  berth 
or  anchorage  assigned  for  the  same  by  the  commissioner,  pending  the  examina- 
tion and  inspection  herein  provided  for,  or  who  shall  permit  or  allow  any 
person  arriving  in  such  vessel  to  depart  therefrom,  and  to  communicate, 
mingle,  or  associate  with  the  population  of  this  state,  or  any  part  thereof,  until 
after  such  examination  and  inspection  by  the  commissioner  is  had,  sliall  for 
every  such  act  or  omission  forfeit  to  the  commissioner  of  immigration  the  sum 
of  one  thousand  dollars  in  U.  S.  gold  coin,  to  be  sued  for  and  recovered  by 
suit  in  any  court  of  competent  jurisdiction,  and  to  be  applied  in  like  manner 
with  the  fees.  And  any  master,  owner,  or  consignee  of  any  such  vessel  bo 
arriving,  who  shall  refuse  or  neglect  to  pay  or  cause  to  be  paid  to  said  commis- 
sioner the  fee  of  seventy  cents  for  the  examination  and  inspection  of  each  and 
every  person  so  arriving  in  such  vessel,  shall  forfeit  to  said  commissioner  for 
each  case  the  sum  of  five  hundred  dollars  in  U.  S.  gold  coin,  to  be  recovered 
and  applied  as  above.  And  the  commissioner  shall  have  a  lien  upon  the  vessel, 
and  the  same  shall  be  sold  to  pay  any  judgment  recovered  under  this  act.  The 
commissioner  shall  have  the  power  to  call  in  the  aid  of  the  sheriff  and  allpolice 
authorities  to  assist  in  enforcing  this  law.  And  he  may  appoint  one  or  more 
deputies  under  him,  who  shall  be  invested  with  all  the  powers  of  the  commis- 
sioner, and  may  discharge  his  official  duties  when  required  by  him.  The 
commissioner  of  immigration  must  prepare  and  transmit  to  the  secretary  of 
state,  quarterly  statements,  certified  under  his  hand  and  seal,  showing  the 
name,  age,  sex,  birthplace,  and  present  residence  of  every  leper  or  person 
affected  with  leprosy  or  elephantiasis,  examined  or  inspected  by  him,  as  well  as 
any  other  information  or  fact  touching  the  character  and  prevalence  of  said 
disease  within  his  knowledge.  [Re-enactment  and  amendment,  approved  March 
25,  1876;  Amendments  1875-6,'  53;  took  effect  immediately. 

2956.  Action  on  bond. 

Sec.  2956.  If  any  person  for  whom  a  bond  has  been  given  under  this  chap- 
ter within  the  time  specified  in  such  bond,  becomes  chargeable  upon  any  city, 
town,  or  county  of  this  state,  an  action  may  be  brought  upon  such  bond  in  the 
name  of  the  people  of  this  state,  by  the  district  attorney  of  the  county.  The 
plaintiff  in  the  action  is  entitled  to  recover  uj)on  such  bond,  from  time  to  time, 
so  much  money,  not  in  the  whole  exceeding  the  penalty  of  such  bond,  exclu- 
sive of  costs,  as  may  be  sufficient  to  defray  the  expense  incurred  by  any  such 
city,  town,  or  county,  for  the  maintenance  and  support  of  the  j)erson  for  whom 
the  bond  may  have  been  given.  The  amount  of  such  recovery  may  be  collected 
from  the  sale  of  the  real  estate  or  other  security  mortgaged,  pledged,  or  depos- 
ited therefor,  in  conformity  with  this  chapter. 

2957.  Penally  for  neglect  to  give  bond. 

Sec.  2957.  If  any  person  or  consignee  neglects  or  refuses  to  give  any  of  the 
bonds  required  by  this  chapter  within  three  days  after  the  landing  of  such  pas- 
senger, or  the  indorsement  of  the  commissioner,  or  does  not  within  that  time 
make  the  commutation  authorized  by  section  2955,  he  is  liable  to  the  State  of 
California  in  the  penal  sum  of  one  thousand  dollars  for  each  passenger  on  whose 
account  such  bond  may  have  been  required,  or  for  whom  such  commutation 
might  have  been  made  under  this  chapter. 

2958.  Commutation  fund,  where  to  be  placed. 

Sec.  2958.  All  moneys  received  in  commutation  of  bonds,  and  paid  into  the 
state  treasury,  must  be  i^laced  to  the  credit  of  the  general  fund.  [Amendment, 
approved  March  7,  1874;  Amendments  1873-4,  132;  took  effect  immediately.^"^ 

[ai  The  original  section  after  "  must  be  "  had  the  foUowing  words,  "  aijpropriatcd  for  the  support  and  mainr 
tenance  of  the  indigent  sick."  ^ 

367 


2959-29G3  POLITICAL  CODE. 

2959.  Fines  and  penalties,  lien  on  vessel. 

Sec.  2959.  For  all  fines  aud  penalties  imposed  by  this  cliapter  upon  any 
master  or  commander,  owner  or  consignee,  for  any  omission,  neglect,  or  re- 
fusal to  perform  any  act  or  duty  required  by  this  cliajiter,  such  vessel  is  liable; 
and  the  amount  of  such  fines  or  jDenalties  are  a  lien  upon  such  vessel,  and  have 
priority  over  all  other  liens,  except  those  for  seamen's  Avages,  bottomry  bonds, 
and  respondentia.  Such  i^enalties  and  fines  may  be  sued  for  and  recovered  in 
a  civil  action,  with  costs  of  suit,  by  the  commissioner,  or  by  his  authorized 
attorney,  in  the  name  of  the  people  of  the  State  of  California,  in  any  court 
having-  cognizance  thereof,  and  when  recovered  must,  after  deducting  the  ex- 
penses, be  paid  into  the  state  treasury. 

2960.  OtluT  commutations. 

Sec  29G0.  The  commissioner  may  compound  or  commute,  for  any  of  the 
penalties  or  fines,  upon  such  terms  as  he  thinks  j)roper,  and  at  the  end  of  every 
month  repoii  to  the  controller  of  state  the  reasons  and  causes  of  such  comj^ound- 
ing  or  commutation.  He  may  also  compound  or  commute  with  the  owner  or  con- 
signee of  any  vessel,  for  any  bond  required  to  be  given  by  such  owner  or  con- 
signee for  such  passengers  as  have  been  paupers  in  any  other  country,  or  who, 
from  their  condition  at  the  time  of  their  arrival  in  this  state,  or  from  sickness 
or  disease  at  the  time  of  their  leaving  the  port  of  departure,  are  a  public  charge, 
or  likely  soon  to  become  so;  such  commutation  to  be  fixed  by  the  commissioner 
at  siich  sum  as  he  may  deem  sufficient  to  defray  the  necessary  expenses  of  such 
persons  during  the  continuance  of  their  then  sick,  disabled,  or  infirm  state. 

2961.  Commutation  money  to  be  paid  into  state  treasury. 

Sec.  2961.  The  commissioner  receiving  any  commutation  money,  or  any 
moneys  from  fines  or  penalties,  under  this  chapter,  must  account  for  and  pay 
the  same,  less  twenty  per  cent.,  which  he  may  retain  as  his  compensation,  on 
the  first  Tuesday  of  every  month,  to  the  treasurer  of  state,  in  the  same  manner 
in  which  county  treasurers  account.  He  must  specify  in  his  account  the  names 
of  the  parties  paj-ing  each  sum  of  money,  the  date  of  such  jDayment,  for  what 
paid,  or  the  name  of  the  vessel  and  the  number  of  passengers  on  account  of 
whom  it  was  paid,  or  annex  thereto  an  affidavit  of  its  correctness.  The  com- 
missioner must  also  furnish  to  the  parties  paying  any  commutation  money,  or 
any  money  from  other  sources,  receipts  in  duplicate,  specifying  the  amount 
paid,  the  name  of  the  vessel  and  the  number  of  passengers  on  account  of  whom 
or  for  what  it  was  paid.  [Amendment,  apiproved  March  30,  1874;  Amendments 
1873-4,  41;  took  effect  immediately. '■°-> 

2962.  Certain  vessels  exempted. 

Sec.  2902.  Masters  of  vessels  arriving  at  any  of  the  ports  of  this  state  from 
any  port  in  this  state,  or  from  Oregon,  or  "Washington  territory,  are  exempt 
from  making  the  statement  required  by  this  chajiter  when  the  vessels  in  which 
the}'  arrive  have  not  taken  on  board  at  their  port  of  departure,  or  at  any  inter- 
mediate port,  any  alien  passenger,  to  pe  landed  at  the  port  of  arrival;  and  mas- 
ters of  vessels  ariuving  from  Panama  are  also  exempted  from  the  provisions  of  this 
chapter  when  they  have  not  landed,  or  are  not  about  to  land,  passengers  who 
took  their  departure  from  ports  other  than  the  port  of  New  York;  and  in  no  case 
must  such  master  l.)e  required  to  rejiort  any  passenger  other  than  way  passen- 
gers taken  on  board  between  the  port  of  New  York  and  the  port  of  arrival  in 
this  state. 

2963.  Certain  persons  exempted. 

Sec.  2963.  The  consuls,  ministers,  agents  or  other  public  functionaries  of  any 

(a)  The  original  aection  after  the  words  "  flius  or  penalties,"  had  the  wordB  "  or  other  sources." 

368 


GENEKAL  POLICE  OF  STATE.  2963-29G8 

foreign  government,  arriving  in  this  state  in  their  official  capacity,  are  exempt 
from  the  provisions  of  this  chapter. 

2964.  Poivers  and  duties  of  commissiovers  of  immigralion. 

Sec.  2964.  The  commissioner  of  immigration  must  approve  all  bonds  and 
administer  all  oaths  required  in  the  discharge  of  his  duties.  Whenever  it  appears 
that  the  master  or  commander  of  any  vessel  has  not  made  a  full  and  correct 
rej)ort,  as  provided  by  this  chapter,  the  commissioner  must  inquire  into  the 
same,  and  for  that  purpose  may  require  the  attendance  of  witnesses  before  him 
in  the  same  manner  as  notaries  public  may  in  civil  cases.  Testimony  so  taken 
may  be  read  as  evidence  on  the  trial  of  any  action  commenced  for  any  penalty 
or  forfeiture  accruing  under  the  provisions  of  this  chapter  in  the  same  manner 
and  with  the  like  effect  as  if  regularly  taken  in  such  action. 

2965.  Same  and  fees. 

Sec.  2965.  The  commissioner  of  immigration  must  prepare  all  bonds  required 
to  be  given  by  the  owners  or  consignees,  masters,  captains,  or  commanders  of 
vessels,  and  administer  the  oaths  to  the  sureties  upon  such  bonds,  and  for  each 
bond  he  may  charge  and  collect  a  fee  of  three  dollars,  and  for  the  administra- 
tion of  each  oath  he  may  charge  one  dollar;  and  if  he  neglects  to  administer 
the  oath  to  such  sureties,  or  to  require  them  to  justify  on  each  bond,  as  required 
herein,  or  if  he  demands  or  receives  any  other  or  larger  fees,  commissions,  or 
compensation  for  services  than  is  expressly  allowed  in  this  chapter,  he  shall  pay 
to  the  State  of  California  the  penal  sum  of  one  hundred  dollars  for  each  offense. 

2968.  Ex  officio  coniviissioners. 

Sec.  2966.  In  all  ports  in  this  state,  other  than  San  Francisco,  the  mayor  or 
chief  municipal  officer  at  such  port,  or  if  there  be  none  such,  then  the  sheriff 
of  that  county  is  ex  officio  commissioner  of  immigration  for  such  port,  and  in 
carrying  out  the  provisions  of  this  chapter,  and  has  all  the  powers  and  is  liable 
to  all  the  penalties  provided  herein. 

2967.  [Sec.  2967^"^  was  repealed  by  act,   approved  March  30,  1874;  Amend- 
ments 1873-4,  42;  took  effect  immediately.] 

2968.  Bond  of  commissioner. 

Sec.  2968.  The  commissioner  of  immigration  for  the  port  of  San  Francisco 
must  execute  an  official  bond  in  the  sum  of  twenty-five  hundred  dollars. 
{Amendment,  approved  March  25,  1876 ;  Amendments  1875-6,  53 ;  took  effect 
immediately.'-^^ 

CHAPTEK  II. 

PRESERVATION    OF    PUBLIC    HEALTH. 

Aeticle    I.  State  Board  of  Health  2978 

II.  Vaccine  Agent 2993 

III.  Health  and  Quarantine  Regulations  for  the   City  and  Harbor  or  San 

Francisco 3004 

IV.  Health  Eegulations  for  the  City  of  Sacramento 3042 

V.  Health  and  Quarantine  of  other  Cities,  Towns,  and  Harbors 3059 


fa)  Repealed  section:  pensatlon  for  his  services,  and  the  other  three  fourths 

Sec.  2967.  The  district  attorney  of   any   county  in  must  be  paid  into  the  county  treasMyof  the  county, 

which  the  provisions  of  this  chapter  may  be  violated  to  be  paid  into  the  state  treasury  for  state  piirposes. 

must  collect  and  enforce  the  payment  of  all  penalties  (6)   The  original  section  instead  of  "hundred,     had 

to  the  state  incurred  hereunder.     One  fourth  of  the  the  word  "  thousand." 

money  so  collected  must  be  retained  by  him  as  com- 


24  369 


2978-2993  POLITICAL  CODE. 

ARTICLE  L 

STATE    BOARD    OF    HEALTH. 

2978.  Who  co7isiifuics  (he  stale  board. 

Sec.  2978.  The  state  board  of  health  consists  of  seven  physicians — two  of  the 
city  of  Sacramento,  and  five  from  other  portions  of  the  state — appointed  by  the 
governor  for  the  term  of  four  years. 

2979.  Duties. 

Sec.  2979.  The  state  board  of  health  must  place  themselves  in  communication 
with  the  local  boards  of  health,  hospitals,  asylums,  and  public  institutions 
throughout  the  state,  and  take  cognizance  of  the  interests  of  health  and  life 
among  the  citizens  generally.  They  must  make  sanitary  investigations  and 
inquiries  respecting  the  causes  of  disease,  especially  of  epidemics,  the  source 
of  mortality',  and  the  effects  of  localities,  emj^loyments,  conditions,  and  circum- 
stances on  the  public  health,  and  gather  such  information  in  respect  to  these 
matters  as  they  may  deem  proper  for  diffusion  among  the  people.  They  may 
devise  some  scheme  whereby  medical  and  vital  statistics  of  sanitary  value  can 
be  obtained,  and  act  as  an  advisory  board  to  the  state  in  all  hygienic  and  medical 
matters,  especially  such  as  relate  to  the  location,  construction,  sewerage,  and 
administration  of  prisons,  hospitals,  asylums,  and  other  public  institutions. 
They  must,  at  each  biennial  session  of  the  legislature,  make  a  report,  with  such 
suggestions  as  to  legislative  action  as  they  deem  proper. 

2980.  To  report  rts  to  the  effect  of  intoxicating  liquors. 

Sec.  2980.  The  board  must  examine  into  and  report  what,  in  their  best  jridg- 
ment,  is  the  effect  of  the  use  of  intoxicating  liquor  as  a  beverage  upon  the 
industry,  prosperity,  happiness,  health  and  lives  of  the  citizens  of  the  state; 
also,  what  legislation,  if  any,  is  necessary  in  the  premises. 

2981.  Tiiyie  and  place  of  meeting — President  and  secretary. 

Sec.  2981.  The  board  must  meet  at  the  capital  of  the  state,  at  least  once  in 
every  three  months.  They  must  elect  from  their  own  number  a  president  and 
a  permanent  secretary;  the  latter  must  reside  at  the  capital,  and  is  their  execu- 
tive officer.  No  member,  except  the  secretar}^,  receives  any  compensation;  but 
the  actual  traveling  expenses  of  the  members,  while  engaged  in  the  duties  of 
the  board,  are  allowed,  and  paid  out  of  the  general  fund. 

2982.  Duties  of  secretary,  and  salary. 

Sec.  2982.  The  secretary  must  superintend  the  work  and  perform  such  other 
duties  as  the  board  may  require.  He  must  furnish  the  legislature,  when  in 
session,  such  information  cognate  to  this  chapter  as,  from  time  to  time,  may  be 
necessary.  An  annual  salary  of  twenty-five  hundred  dollars,  and  his  office  and 
other  necessary  expenses  incurred  in  the  performance  of  his  duties,  must  be 
paid  to  him  in  the  same  manner  as  salaries  of  state  officers  are  paid. 

2983.  Kvpenses  of,  limited. 

Sec.  2983.  The  expenses  of  the  board,  including  the  salary  of  the  secretary, 
must  not  exceed  four  thousand  dollars  per  annum.    ' 

ARTICLE   11. 

VACCINE    AGENT. 

2993.  Agent  to  ohtain  gemdne  raccine  matter. 

Sec.  2993.  The  vaccine  agent  must  obtain  a  supply  of  the  genuine  vaccine 
matter,  and  preserve  the  same  for  the  use  and  benefit  of  the  citizens  of  this 
state. 

370 


GENEEAL  POLICE  OF  STATE.  2994-30[]9 

2994.   Compensation  and  duly  of. 

Sec.  2994.  Such  agent  must  furnish  genuine  vaccine  matter,  approved  hy  tlio 
state  board  of  health,  to  any  reguL'ir  practicing  physician  in  good  standing  in 
his  profession  in  this  state.  He  may  charge  and  receive  for  eveiy  parcel  of 
vaccine  matter  furnished  the  sum  of  five  dollars,  which  is  in  full  compensation 
for  his  services  and  expenses. 

ARTICLE   III. 

HEALTH    AND    QUARANTINE    REGULATIONS    FOR    THE    CITY    AND   HARBOR    OF    SAN  FRANCISCO. 

3004.  Quarantine  grounds,  location  of. 

Sec.  3004.  The  cjuarantine  grounds  of  the  bay  and  harbor  of  San  Francisco 
are  at  the  anchorage  of  Saucelito. 

3005.  Board  of  health  of  San  Francisco,  how  constituted. 

Sec  3005.  The  board  of  health  of  the  city  and  county  of  San  Francisco  con- 
sists of  the  mayor  of  the  city  and  county,  and  four  physicians  in  good  standing 
residing  in  the  city  and  county  of  San  Francisco,  appointed  by  the  governor, 
and  holding  their  offices  for  the  term  of  five  years. 

3006.  Mayor  ex  officio  president — Time  of  meeting . 

Sec.  3006.  The  mayor  is  ex  officio  president  of  the  board.  The  board  must 
meet  monthly,  and  at  such  other  times  as  the  president  may  dii'ect.  In  the 
absence  of  the  president,  the  board  may  elect  a  chairman,  who  is  clothed  with 
the  same  powei^s  as  the  president. 

3007.  Health  officer — His  election. 

Sec  3007.  The  health  officer  for  the  city  and  county  and  port  of  San  Fran- 
cisco is  elected  by  the  board  of  health,  and  holds  office  at  its  pleasure.  He 
must  be  a  graduate  of  some  medical  college,  in  good  standing,  and  must  reside 
within  the  city  limits  of  San  Francisco. 

3008.  Poxvers. 

Sec  3008.  The  health  officer  may  perform  all  acts  which  quarantine  officers 
are  usually  authorized  to  perform,  and  he  is  the  executive  officer  of  the  board  of 
health. 

3009.  Deputy  health  officer,  etc.,  to  he  appointed. 

Sec.  3009.  The  board  of  health  must  appoint  a  deputy  health  officer,  who 
shall  be  a  physician  in  good  standing ;  a  secretary,  two  health  inspectors,  one 
market  inspector,  and  one  messenger,  whose  duties  must  be  fixed  by  the  health 
officer.  They  must  also  appoint  one  resident  physician,  one  assistant  resident 
physician,  one  steward,  one  matron,  one  first  aj)othecary,  one  second  apothe- 
cary, two  visiting  physicians,  two  visiting  surgeons,  as  officers  of  the  city  and 
county  hospital,  in  and  for  the  city  and  county  of  San  Francisco.  One  each  of 
said  visiting  j)hysicians  and  surgeons  to  be  nominated  by  the  faculty  of  the 
medical  dei^artment  of  the  university  of  California,  and  one  each  of  said  visit- 
ing physicians  and  surgeons  to  be  nominated  by  the  medical  college  of  the  Pa- 
cific. The  said  board  shall  also  have  the  i:)ower  to  appoint  one  superintendent, 
one  resident  physician,  one  matron,  and  such  other  employees  as  are  now  au- 
thorized by  law  to  be  employed  in  and  for  the  almshouse  in  said  city  and  county. 
The  appointing  power  aforesaid  is  vested  solel}'  in  said  board  of  health,  and 
said  board  shall  have  power  to  prescribe  the  duties  of  said  api^ointees  and  to 
remove  the  same  at  pleasure.  [Amendment ,  approved  March  23,  1874;  Amend- 
ments 1873-4,  132  ;  took  ef'ect  from  passage ;  repealed  conflicting  acts.'-"^ 

[See  also  amendatory  act  under  next  section.] 

(a)   The  origiDal  Bection  consisted  of  the  first  sentence  alone. 

371 


3010  POLITICAL  CODE. 

3010.   Compensation  of  health  officers. 

Sec.  3010,  The  follo-u-ing  annual  salaiies  are  hereby  allowed  to  the  officers  of 
the  health  department  and  such  other  officers  as  are  mentioned  in  section  one 
of  this  act,  viz. :  health  officer,  twentj-foui-  hundred  dollars  ;  deputy'  health  offi- 
cer, eighteen  hundred  dollars  ;  secretary-,  two  thousand  and  one  hundred  dol- 
lars ;  health  inspectors,  one  thousand  and  two  hundred  dollars  each  ;  market 
inspector,  one  thousand  and  two  hundred  dollars  ;  messenger,  nine  hundred 
dollars.  All  of  said  salaries  must  be  paid  in  equal  monthly  installments,  out 
of  the  general  fund  of  the  city  and  county  of  San  Francisco,  in  the  same  man- 
ner as  the  salaries  of  the  other  officers  of  the  said  city  and  county  are  paid. 
There  shall  be  jDaid  to  the  officers  and  employees  of  the  city  and  county  hospi- 
tal, and  almshouse,  the  following  annual  salaries,  viz. :  resident  physicians,  two 
thousand  and  four  hundred  dollars  ;  assistant  resident  phj'sicians,  fifteen  hun- 
dred dollars  ;  steward,  tifteen  hundred  dollars  ;  matron,  seven  hundred  and 
twenty  dollars  ;  first  apothecary-,  twelve  hundred  ;  second  apothecary,  six  hun- 
dred ;  visiting  physicians  and  surgeons,  twelve  hundred  dollars  each ;  superin- 
tendent of  almshouse,  eighteen  hundred  dollars  ;  resident  physician  of  alms- 
house, fifteen  hundred  dollars  ;  matron  of  the  almshouse,  six  hundred  dollars  ; 
and  all  other  employees  of  said  institutions  are  to  be  paid  such  sums  as  are  now 
authorized  by  law,  all  to  be  paid  in  equal  monthly  installments  out  of  the  hos- 
pital and  almshouse  fund  of  said  city  and  county  of  San  Francisco.  And  the 
auditor  of  said  city  and  county  is  tereby  directed  to  audit  the  said  demands, 
payable  out  of  the  funds  aforesaid,  upon  the  apj^roval  of  the  same  by  the  said 
board  of  health,  and  also  to  audit  all  demands  for  salaries  of  medical  attendants 
and  emploj-ees,  appointed  by  the  board  of  health  in  accordance  with  this  chaj)- 
ter,  for  the  amounts  authorized  by  law-  to  be  paid  when  the  same  shall  have  been 
approved  by  said  board.  [Amendment,  approved  March  23,  1874  ;  Amendments 
1873-4,  133  ;  took  effect  from  passage  ;  repealed  conflicting  acts}^^ 

[The  "section  one  of  this  act,"  mentioned  in  the  foregoing  amendment, 
refers  to  tbe  amendment  of  the  preceding  section  3009.  Both  sections  were 
further  amended  by  the  following  act:] 

An  Act  to  amend  an  act  entitled  "An  Act  to  amend  sections  3009  and  3010  of  the  Political 
Code,"  approved  March  23,  187-i. 

Approved  March  30,  1874;  Ameudmeuts  1873-4,  135. 

Appointmertt  of  city  physician. 

Section  1.  The  board  of  health  of  the  city  and  county  of  San  Francisco  shall 
alone  have  the  poAver  to  appoint  one  city  physician,  who  shall  receive  an  annual 
salary  of  nine  hundred  dollars,  which  must  be  paid,  in  equal  monthly  install- 
ments, out  of  the  general  fund  of  the  city  and  county  of  San  Francisco,  in  the 
same  manner  as  the  salaries  of  the  other  officers  of  said  city  and  county  are 
paid. 

Appointment  of  emjyloyees. 

Sec  2.  The  said  board  of  health  of  the  city  and  county  of  San  Francisco 
may,  in  their  discretion,  appoint  one  engineer  and  i:)lumber,  one  first  cook,  sec- 
ond cook,  one  third  cook,  one  baker,  one  butcher,  one  clerk  and  interpreter, 
one  ambulance  driver,  one  gatekeeper,  one  dresser  and  sixteen  nurses,  as  em- 
ployees and  medical  attendants  of  the  city  and  county  hospital  of  San  Francisco. 
Salaries. 

Sec.  3.  The  following  monthly  salaries  are  hereby  allowed  to  said  employees 
and  medical  attendants  mentioned  in  section  2  of  this  act:  Engineer  and  plumber, 

(a)  The  ori(»lnal  section  provided  for  the  snme  com-  first  two  sentences,  down  to  and  including  the  words 
pensationto  bs  paid  to  the  olficers  mentioned  in  the     "of  the  said  city  and  county  are  paid." 

372 


GENERAL  POLICE  OF  STATE.  3010-3015 

per  montli;  first  cook,  $70  per  month;  second  cook,  $40  per  raontli;  tLird 
cook,  $35  per  montli;  baker,  $75  per  montli;  butcher,  $40  per  month;  clerk  and 
interpreter,  $40  per  month;  ambulance  driver,  $40  per  month;  dresser,  $50  per 
month;  nurses,  $40  per  month  each.  All  of  said  sums  must  be  paid  monthly 
out  of  the  hospital  and  almshouse  fund  of  said  city  and  county  of  San  Fran- 
cisco, and  the  auditor  of  said  city  and  county  is  hereby  directed  to  audit  the 
said  demands  payable  out  of  the  fund  aforesaid,  upon  the  approval  of  the  same 
by  the  said  board  of  health. 

Sec.  4,  This  act  shall  take  effect  and  be  in  force  from  and  after  its  passage. 

3011.  Expenses  of  health  officer. 

Sec.  3011.  The  health  of&cer,  in  addition  to  his  salary,  receives  such  sums  for 
the  necessary  exjDenses  of  his  office  as  the  board  of  health  may  direct,  and  the 
auditor  must  audit  and  the  treasurer  pay  such  sums  out  of  the  general  fund. 
The  board  of  supervisors  must  provide  proper  offices  for  the  health  department. 

3012.  General  powers  of  hoard  of  health. 

Sec.  3012.  The  board  of  health  have  general  supervision  of  all  matters  apper- 
taining to  the  sanitary  condition  of  the  city  and  county,  including  the  city  and 
county  hospital,  the  county  jail,  almshouse,  industrial  school,  and  all  public 
health  institutions  provided  by  the  city  and  county  of  San  Francisco;  and  may 
adopt  such  orders  and  regulations,  and  appoint  or  discharge  such  medical  attend- 
ants and  emiDloj^ees,  as  to  them  seems  best  to  promote  the  public  welfare;  and 
may  apipoint  as  many  health  inspectors  as  they  deem  necessary  in  time  of 
epidemics. 

3013.  Shipmasters  to  report  infected  vessels. 

Sec.  3013.  Shipmasters  bringing  vessels  into  the  harbor  of  San  Francisco, 
and  masters,  owners,  or  consignees  having  vessels  in  the  harbor  which  have  on 
board  any  cases  of  Asiatic  cholera,  smallpox,  yellow,  typhus,  or  ship  fever,  must 
report  the  same,  in  writing,  toihe  health  officer  before  landing  any  passengers, 
casting  anchor,  or  coming  to  any  wharf,  or  as  soon  thereafter  as  they,  or  either 
of  them,  become  aware  of  the  existence  of  either  of  these  diseases  on  board  of 
their  vessel. 

3014.  Fasserigers  and  freight  not  to  be  landed  without  permit . 

Sec.  3014.  No  captain  or  other  officer  in  command  of  any  vessel  sailing  under 
a  register  arriving  at  the  joort  of  San  .Francisco,  nor  any  owner,  consignee, 
agent,  or  other  person  having  charge  of  such  vessel,  must,  under  a  penalty  of 
not  less  than  one  hundred  dollars  nor  more  than  one  thousand  dollars,  land  or 
permit  to  be  landed  any  freight,  passengers,  or  other  persons  from  such  vessel 
until  he  has  reported  to  the  health  officer,  presented  his  bill  of  health,  and 
received  a  permit  from  that  officer  to  land  freight,  passengers,  or  other  persons. 

3015.  Duties  of  pilots. 

Sec  3015.  Every  pilot  who  conducts  into  the  port  of  San  Francisco  any  vessel 
subject  to  quarantine  or  examination  by  the  health  officer,  must: 

1.  Bring  the  vessel  no  nearer  the  city  than  is  allowed  by  law; 

2.  Prevent  any  person  from  leaving  and  any  communication  being  made  with 
the  vessel  under  his  charge  until  the  health  officer  has  boarded  her  and  given 
the  necessary  orders  and  directions; 

3.  Be  vigilant  in  preventing  any  violation  of  the  quarantine  laws,  and  report 
without  delay  all  such  violations  that  come  to  his  knowledge  to  the  health 
officer; 

4.  Present  the  master  of  the  vessel  with  a  printed  copy  of  the  quarantine 
laws,  unless  he  has  one; 

5.  If  the  vessel  is  subject  to  quarantine  by  reason  of  infection,  place  at  the 
mast-head  a  small  yellow  flag. 

373 


3016-3021  POLITICAL  CODE. 

3016.  Penaltyfor  neglect  of  masters  of  vessels  to  comply  lolih  sanitary  regulations. 
Sec.  3016.  Every  master  of  a  vessel,  subject  to  quarantine  or  visitation  by  tbe 

health  officer,  arriving  in  the  jiort  of  San  Francisco,  who  refuses  or  neglects 
either : 

1.  To  proceed  uith  and  anchor  his  vessel  at  the  place  assigned  for  quaran- 
tine, when  legally  directed  so  to  do;  or, 

2.  To  submit  his  vessel,  cargo,  and  passengers  to  the  health  officer,  and 
furnish  all  necessary  information  to  enable  that  officer  to  determine  what  quar- 
antine or  other  regulations  they  ought,  respectively,  to  be  subject;  or, 

3.  To  report  all  cases  of  disease,  and  of  deaths  occurring  on  his  vessel,  and 
to  comply  with  all  the  sanitaiy  regulations  of  the  bay  and  harbor; 

— Is  liable  in  the  sum  of  five  hundred  dollars  for  every  such  neglect  or  refusal. 

3017.  Vessels  from  infected  ports,  etc.,  subject  to  quarantine. 

Sec.  3017.  All  vessels  arriving  off  the  port  of  San  Francisco  from  ports  Avhich 
have  been  legally  declared  infected  ports,  and  all  vessels  arriving  from  ports 
where  there  is  prevailing,  at  the  time  of  their  departure,  any  contagious,  infec- 
tious, or  pestilential  diseases,  or  vessels  with  decaying  cargoes,  or  which 
have  unusually  foul  or  offensive  holds,  are  subject  to  quarantine,  and  must  be 
by  the  master,  owner,  pilot,  or  consignee  reported  to  the  health  officer  without 
delay.  No  such  vessel  must  cross  a  right  line  drawn  from  Meiggs  Avharf  to 
Alcatraz  island  until  the  health  officer  has  boarded  her  and  given  the  order 
required  by  law. 

3018.  Examination  and  inspection  of  vessels  by  health  officer. 

Sec  3018.  The  health  officer  must  board  every  vessel  subject  to  quarantine 
or  visitation  by  him,  immediately  on  her  arrival,  make  such  examination  and 
inspection  of  vessel,  books,  papers,  or  cargo,  or  of  persons  on  board,  under 
oath,  as'  he  may  judge  expedient,  and  determine  whether  the  vessel  should  be 
ordered  to  quarantine,  and  if  so,  the  period  of  quarantine. 

3019.  Passengers  not  to  be  landed  without  permit. 

Sec  3019.  No  captain  or  other  officer  in  command  of  any  passenger-carrying 
vessel  of  more  than  one  hundred  and  fifty  tons  burden,  nor  of  any  vessel  of 
more  than  one*  hundred  and  fifty  tons  burden  having  passengers  on  board,  nor 
any  owner,  consignee,  agent,  or  other  person  having  charge  of  such  vessel  or 
vessels,  must,  under  a  penalty  of  not  less  than  one  hundred  dollars  nor  more 
than  one  thousand  dollars,  laud,  or  permit  to  be  landed,  any  passenger  from 
the  vessel  until  he  has  presented  his  bill  of  health  to  the  health  officer,  and 
received  a  permit  from  that  officer  to  land  such  passenger,  except  in  such  cases 
as  tlie  health  officer  deems  it  safe  to  give  the  j^ermit  before  seeing  the  bill  of 
health. 

3020.  Fees  of  health  officer. 

Skc  3020.  The  following  fees  may  be  collected  by  the  health  officer:  For 
giving  a  pennit  to  land  freight  or  passengers,  or  both,  from  any  vessel  of  less 
than  one  thousand  tons  burden,  from  any  port  out  of  this  state,  two  and  a  half 
dollars;  from  any  port  in  this  state,  one  dollar  and  a  quarter;  from  any  passen- 
ger-cariying  vessel  of  more  than  one  thousand  tons  burden,  three  dollars  and 
seventy-five  cents;  for  vessels  of  more  than  one  thousand  tons  burden,  carrying 
no  passengers,  two  dollars  and  fifty  cents;  for  vaccination,  from  each  person, 
one  dollar. 

3021.  Compulsory  vaccination. 

Sec  30"21.  The  board  of  health  may  enforce  comi:)ulsory  vaccination  on  pas- 
sengers in  infected  ships  or  coming  from  infected  ports. 

374 


GENEEAL  POLICE  OF  STATE.  3022-3031 

3022.  Hofipilals  to  be  j:>rovided. 

Sec.  3022.  The  board  of  health  may  provide  suitable  hospitnls,  to  he  situated 
at  or  near  Saucelito,  and  furnish  and  supply  the  same  with  nurses  and  attaches, 
and  remove  thereto  all  persons  afflicted  with  cholera,  smallpox,  yellow,  typhus, 
or  ship  fever. 

3023.  Records  of  births,  deatlis,  and  interments  to  be  kept. 

Sec.  3023.  The  health  officer  must  keep  a  record  of  all  births,  deaths,  and 
interments  occurring  in  the  city  and  county  of  San  Francisco.  Such  records, 
when  filled,  must  be  deposited  in  the  office  of  the  county  recorder,  and  pro- 
duced when  required  for  public  inspection. 

3024.  Returns  of  birUus,  deaths,  and  nvmber  of  stillborn  children. 

Sec.  3024.  Physicians  and  midwives  must,  on  or  before  the  fourth  day  of 
each  month,  make  a  return  to  the  health  officer  of  all  births,  deaths,  and  the 
number  of  stillborn  children  occurring  in  their  practice  during  the  preceding 
month.  In  the  absence  of  such  attendants,  the  parent  must  make  such  report 
within  thirty  days  after  the  birth  of  the  child.  Such  returns  must  be  made  in 
accordance  with  rules  adopted  and  upon  blanks  furnished  by  the  board  of 
health. 

3025.  No  bodies  to>be  interred  without  permit. 

Sec.  3025.  No  person  must  inter  in  the  city  and  county  of  San  Francisco  any 
human  body  without  having  first  obtained  a  physician's  or  coroner's  certificate, 
setting  forth  as  near  as  possible  the  name,  age,  color,  sex,  place  of  birth,  date, 
locality,  and  cause  of  death  of  the  deceased;  and  physicians,  when  deaths  occur 
in  their  practice,  must  give  such  certificates. 

3026.  Return  of  interments  to  be  made  to  health  officer. 

Sec.  3026.  Superintendents  of  cemeteries  within  the  boundaries  of  the  city 
and  county  of  San  Francisco  must  return  to  the  health  officer  on  each  Monday 
the  names  of  all  persons  interred  within  their  respective  cemeteries  for  the  pre- 
ceding week,  together  with  the  certificates  mentioned  in  the  preceding  section. 

3027.  Bodies  not  to  be  removed  without  permit. 

Sec.  3027.  No  superintendent  of  a  cemetery  can  remove,  or  cause  to  be  re- 
moved, disinter,  or  cause  to  be  disinterred,  any  corpse  that  has  been  deposited 
in  the  cemetery,  without  a  permit  from  the  health  officer,  or  by  order  of  the 
coroner. 

3028.  Nuisances  on  premises  of  non-residents,  how  abated. 

Sec.  3028.  Whenever  a  nuisance  exists  on  property  of  any  non-resident  of 
the  city  and  county,  the  board  of  supervisors  may,  on  the  recommendation  of 
the  board  of  health,  cause  the  nuisance  to  be  abated,  and  may  allow  and  order 
paid  out  of  the  general  fund  all  proper  charges  and  expenses  incurred  in  abat- 
ing such  nuisance;  and  all  sums  so  allowed  and  j^aid  become  a  charge  upon  the 
property  on  which  the  nuisance  existed,  and  may  be  recovered  by  an  action 
against  such  property. 

3029.  Health  officer  to  keep  fee  book. 

Sec.  3029.  The  health  officer  must  keep  in  his  office  a  book  in  which  he  must 
make  an  entry  of  all  fees  collected  by  him.  He  must  pay  all  fees  collected  to 
the  city  and  county  treasurer  weekly,  to  the  credit  of  the  general  fund. 

3030.  Bond  of  health  officer. 

Sec.  3030.  The  health  officer  must  execute  an  official  bond,  to  be  approved 
by  the  board  of  health,  in  the  sum  of  ten  thousand  dollars. 

3031.  Health  officer  maij  administer  oaths. 

Sec.  3031.  Any  member  of  the  board  of  health,  deputy  health  officer,  or  sec- 

375 


3031-3032  POLITICAL  CODE. 

retary  of  the  health  deijartmeut,  is  empowered  to  administer  oaths  on  business 
connected  with  that  depaiiment. 

8032.  Actions,  in  ichose  name  maintained. 

Sec.  3032.  Whenever  any  cause  of  action  arises  under  any  of  the  provisions 
of  this  chapter,  suit  may  be  maintained  therein,  in  the  name  of  the  health 
officer,  in  an}-  district  court  of  this  state. 

An  Act  to  establish  a  quannitiue  for  the  bay  and  harbor  of  Sau  Francisco,  and  sanitary  laws 
for  the  city  and  county  of  Sau  Fraucisco. 

Approved  April  4,  1870;  1869-70,  716. 

Quarantine  gi'ounds  at  Saucelifo. 

Section  1.  The  quarantine  grounds  of  the  bay  and  harbor  of  San  Francisco 
shall  be  at  the  anchorage  of  Saucelito. 

Board  of  heallJi. 

Sec  2.  There  shall  be  a  board  of  health  in  and  for  the  city  and  county  of  Sau 
Francisco,  which  board  shall  consist  of  the  mayor  of  the  city  and  county,  and 
four  physicians  in  good  standing,  residing-  in  the  city  and  county  of  San  Fran- 
cisco, who  shall  be  appointed  by  the  governor;  and  they  shall  determine  by  lot, 
one  shall  hold  for  one  year,  one  for  two  years,  one  for  three  years,  one  for  four 
years;  and  their  successors  shall  be  appointed,  as  herein  provided,  for  the  term 
of  live  years  each. 
Ileetings. 

Sec.  3.  The  mayor  of  the  city  and  county  of  San  Francisco  shall  be  ex  officio 
president  of  the  board  of  health;  they  shall  meet  monthly  and  at  such  other 
times  as  the  president  may  call  them  together  for  the  transaction  of  business. 
In  the  absence  of  the  president  the  board  shall  elect  a  chairman,  who  shall  be 
clothed  with  the  same  powers  as  the  president. 

Health  officer. 

Sec.  4.  There  shall  be  a  health  officer  for  the  city  and  county  and  port  of  San 
Francisco;  he  shall  be  elected  bj^  the  board  of  health,  and  shall  continue  in 
office  diu'ing  its  pleasure.     He  shall  be  a  graduate  of  some  medical  college  in 
good  standing,  and  shall  reside  within  the  city  limits  of  Sau  Francisco. 
Powers  of  health  officer. 

Sec.  5.  The  health  officer  shall  have  power  to  perform  all  acts  which  quaran- 
tine officers  are  usually  authorized  to  perform,  and  shall  be  the  executive  officer 
of  the  boad'd  of  health. 
Officers. 

Sec  G.  The  board  of  liealth  shall  appoint  a  dejDuty  health  officer,  who  shall 
be  a  physician  in  good  standing,  a  secretar}^  two  health  inspectors,  one  market 
inspector  and  one  messenger,  whose  duties  shall  be  defined  by  the  health  officer. 
Salaries. 

Sec  7.  The  following  rates  of  compensation  shall  be  allowed  to  the  officers 
of  the  health  department:  Health  officer,  twenty-four  hundred  dollars  jier 
annum;  deputy  health  officer,  eighteen  hundred  dollars  per  annum;  secretary, 
two  thousand  one  liundred  dollars  per  annum;  two  health  insjoectors,  one  thou- 
sand two  hundred  dollars  per  annum  each;  one  market  insi)ector,  one  thousand 
two  hundred  dollars  per  annum,  and  one  messenger,  nine  hundred  dollars  per 
annum.  All  the  salaries  provided  to  be  jmid  under  the  provisions  of  this  act, 
shall  be  paid  monthly,  in  equal  installments,  out  of  the  general  fund  of  said 
city  and  county,  in  the  same  manner  as  the  salaries  of  the  other  officers  of  said 
city  and  county  are  paid;  and  it  shall  be  the  duty  of  the  auditor  of  said  city 
and  county  to  allow,  and  of  the  treasurer  to  pay,  said  salaiies  in  the  manner 
herein  provided. 

37G 


GENEEAL  POLICE  OF  STATE.  3032 

Expeyises. 

Sec.  8.  The  health  officer,  in  addition  to  his  salary,  shall  receive  such  sums 
for  the  necessary  expenses  of  his  office  as  the  board  of  health  may  direct,  and 
the  auditor  is  hereby  directed  to  audit,  and  the  treasurer  to  pay,  such  sums  out 
of  the  general  fund,  and  the  board  of  supervisors  shall  provide  proper  offices 
for  the  health  department. 

Poivers  of  board  of  health. 

Sec.  9.  The  board  of  health  shall  have  general  supervision  of  all  matters 
ai)pertainiug  to  the  sanitary  condition  of  said  city  and  county,  including  the 
city  and  county  hospital,  the  county  jail,  almshouse,  industrial  school,  and  all 
public  health  institutions  provided  by  the  city  and  county  of  San  Francisco; 
and  full  powers  are  hereby  given  to  said  board  to  adopt  such  orders  and  regu- 
lations, and  appoint  or  discharge  such  medical  attendants  and  employees  as  to 
them  seems  best  to  promote  the  public  welfare,  and  not  in  contravention  of  any 
law,  and  they  may  appoint  as  many  health  inspectors  as  they  may  deem  neces- 
sary in  time  of  epidemic. 

Infected  vessels  to  report. 

Sec.  10.  It  shall  be  the  duty  of  shipmasters  bringing  vessels  into  the  harbor 
of  San  Francisco,  and  of  masters,  owners  or  consignees  having  vessels  in  said 
harbor,  which  have  on  board  any  cases  of  smallpox,  yellow  fever  or  Asiatic 
cholera,  typhus  or  ship  fever,  to  immediately  rejDort  the  same  in  writing  to  the 
health  officer  before  landing  any  passengers,  casting  anchor,  or  coming  to  any 
wharf,  or  as  soon  thereafter  as  they  or  either  of  them  shall  become  aware  of  the 
existence  of  either  of  these  diseases  on  board  of  said  vessel. 

Landing  passengers. 

Sec.  11.  No  captain  or  other  officer  in  command  of  any  vessel  sailing  under  a 
register,  arriving  at  this  port,  nor  any  owner,  consignee,  agent  or  other  person 
having  charge  of  such  vessel  or  vessels,  shall,  under  a  penalty  of  not  less  than 
one  hundred  dollars,  nor  more  than  one  thousand  dollars,  land  or  permit  to  be 
landed,  any  freight,  passengers  or  other  persons  from  said  vessel  or  vessels,  till 
he  shall  hav&  reported  to  the  health  officer,  presented  his  bill  of  health  and 
received  a  permit  from  said  officer  to  land  said  freight,  passengers  or  other 
persons. 

Duty  of  pilots. 

Sec.  12.  It  shall  be  the  duty  of  every  pilot  who  shall  conduct  into  the  port  of 
San  Francisco  any  vessel  subject  to  quarantine,  or  to  examination  by  the  health 
officer : 

1.  To  bring  said  vessel  no  nearer  the  town  than  is  allowed  by  section  fourteen 
of  this  act; 

2.  To  prevent  any  person  from  leaving,  and  any  communication  being  made 
with  the  vessel  under  his  charge,  till  the  health  officer  shall  have  boarded  her, 
and  shall  have  given  the  necessary  orders  and  directions; 

3.  To  be  vigilant  in  preventing  any  violation  of  the  quarantine  laws,  and  to 
report  without  delay  all  such  violations  that  come  to  his  knowledge  to  the  health 
officer; 

4.  To  present  the  master  of  the  vessel  with  a  printed  copy  of  the  quarantine 
laws,  unless  he  have  one  already;  and,  in  the  event  of  being  subject  to  quaran- 
tine, by  reason  of  infection,  to  j)lace  at  the  mast-head  a  small  3-ellow  flag. 

Refusal  to  comply  xoith  sanitary  regulations. 

Sec.  13.  Every  master  of  a  vessel  subject  to  quarantine  or  visitation  by  the 
health  officer,  arriving  in  the  port  of  San  Francisco,  who  shall  refuse  or  neglect 
either: 

377 


3032  POLITICAL  CODE. 

1.  To  proceed  with  and  anchor  bis  vessel  at  the  place  assigned  for  quaran- 
tine, -wlien  legally  directed  so  to  do;  or, 

2.  To  submit  his  vessel,  cargo  and  jDassengers  to  the  health  officer,  and  to 
furnish  all  necessary  information  to  enable  that  officer  to  determine  to  what 
length  of  quarantine  and  other  regulations  they  ought  respectively  to  be 
subject;  or  neglect  to  report  all  cases  of  disease  mentioned  in  this  act,  and  all 
cases  of  death  occurring  on  his  vessel,  and  to  comply  with  all  the  sanitary  reg- 
ulations of  said  bay  and  harbor,  shall  be  deemed  guilty  of  a  misdemeanor,  and 
on.' conviction  thereof,  shall  be  punished  as  provided  for  in  section  eleven  of 
this  act. 

Vessels  arriving  from  infected  ports. 

Sec.  1-4.  All  vessels  arriving  off  the  port  of  San  Francisco,  from  ports  which 
have  been  legally  declared  infected  ports,  and  all  vessels  arriving  from  ports 
where  there  shall  be  j)revailing,  at  the  time  of  their  dejjarture,  any  contagious, 
infectious  or  pestilential  diseases  (especially  smallpox,  Asiatic  cholera,  typhus 
or  ship  fever),  or  vessels  with  decaying  cargoes,  or  which  have  unusually  foul 
or  offensive  holds,  shall  be  subject  to  quarantine;  and  it  shall  be  the  duty  of 
the  master,  owner,  pilot  or  consignee,  to  rejDort  any  and  all  such  vessel  or 
vessels  to  the  health  officer  Avithout  delay.  No  such  vessel  shall  cross  a  right 
line  drawn  from  Meiggs  wharf  to  Alcatraz  island,  till  the  health  officer  shall 
have  boarded  her,  and  given  the  order  required  by  law. 

Inspection  of  vessels. 

Sec.  15.  It  shall  be  the  duty  of  the  health  officer  to  board  every  vessel  subject 
to  quarantine  or  visitation  by  him,  immediately  on  her  arrival  (or  as  soon  as  he 
shall  be  notified  thereof),  between  sunrise  and  sunset,  to  make  such  examination 
and  ins2:)ection  of  vessel,  books,  papers  or  cargo,  or  of  persons  on  board,  under 
oath,  as  he  may  judge  expedient,  to  determine  whether  said  vessel  should  be 
ordered  to  quarantine,  and  if  so,  the  period  of  quarantine. 

Landing  passengers  without  permit. 

Sec.  1G.  No  captain  or  other  officer  in  command  of  any  passenger-cai'rying 
vessel  of  more  than  one  hundred  and  fifty  tons  burden,  nor  of  any  vessel  more 
than  one  hundred  and  fifty  tons  burden  having  passengers  on  board,  nor  any 
owner,  consignee,  agent  or  other  person  having  charge  of  such  vessel  or  ves- 
sels, shall,  under  a  penalty  of  not  less  thano2ie  hundred  dollars,  nor  more  than 
one  thousand  dollars,  land  or  permit  to  be  landed  any  passenger  or  passengers 
from  said  vessel  or  vessels,  until  he  shall  have  presented  his  bill  of  health  to 
the  health  officer,  and  received  a  permit  from  that  officer  to  land  said  passenger 
or  passengers,  except  in  such  cases  as  the  health  officer  shall  deem  it  safe  to 
give  the  permit  before  seeing  the  bill  of  health. 

Fees. 

Sec.  17.  The  following  fees  shall  be  collected  by  the  health  officer:  For  giv- 
ing a  permit  to  land  freight  or  passengers,  or  both,  from  any  vessel  of  less  than 
one  thousand  tons  burden,  from  any  port  out  of  this  state,  two  and  a  half  dol- 
lars; from  any  port  in  this  state,  one  dollar  and  aquai'ter;  from  any  passenger- 
carrying  vessel  of  more  than  one  thousand  tons  bui'den,  three  dollars  and 
seventy-five  cents;  from  vessels  of  more  than  one  thousand  tons  burden,  carry- 
ing no  passengers,  two  dollars  and  fifty  cents;  provided  that  vessels  carrying 
less  than  twenty  passengers  shall  in  no  case  pay  more  than  two  dollars  and  a 
half;  but  this  shall  not  apply  to  sailing  vessels  sailing  to  and  from  an}'  port  of 
the  Pacific  states  of  the  United  States  or  territories,  or  to  whaling  vessels  en- 
tering the  harbor  of  San  Francisco,  excepting  that  they  shall  report  to  the 
health  officer,  as  provided  for  in  section  ten  of  this  act. 

378 


GENERAL  POLICE  OF  STATE.  3032 

Vaccmaiion. 

Sec.  18.  The  health  officer  or  his  deputy  shall  board  any  vessels  bringing 
passengers  from  Asiatic  ports  and  coming  into  the  harbor  of  San  Francisco, 
and  then  and  there,  in  his  discretion,  vaccinate  each  and  every  one  of  said  pas- 
sengers before  they  shall  be  permitted  to  land  in  the  city  and  county  of  San 
Francisco. 

Re-vaccination. 

Sec.  19.  In  case  there  shall  be  any  person  on  board  the  vessels  mentioned  in 
section  ten,  v^ho  shall  actually  be  sick  with  the  smallpox,  the  health  officer  is 
hereby  authorized  to  require  each  and  every  person  on  board  said  vessel  to  be 
re-vaccinated,  if  he  or  she  has  been  previously  vaccinated,  or  to  be  then  and 
there  vaccinated  for  the  first  time. 
blaster  of  vessel  to  aid  health  officer. 

Sec.  20.  It  shall  be  the  duty  of  each  and  every  master,  or  other  officer  having 
command  of  such  vessel,  to  aid  the  health  officer  in  performing  the  duties  herein 
required,  by  anchoring  the  vessel  in  the  bay,  and  by  all  other  suitable  and 
reasonable  means,  until  said  vaccination  shall  have  been  completed;  and  any 
master,  or  other  officer  in  command  of  such  vessel,  who  shall  neglect  or  refuse 
to  render  such  assistance  in  carrying  out  the  provisions  of  this  section,  shall  be 
deemed  guilty  of  a  misdemeanor,  and,  on  conviction  thereof,  shall  be  punished 
by  a  fine  not  less  than  one  hundred  dollars,  nor  more  than  five  hundred  dollars. 

Fee  for  vaccination. 

Sec.  21.  The  fees  of  the  health  officer  for  vaccinating  such  passengers  shall 
be  one  dollar  for  each  and  every  person  so  vaccinated;  and  all  persons  refusing 
to  be  vaccinated,  or  to  pay  fee  therefor,  shall  be  detained  at  quarantine  on 
board  said  vessel  until  they  are  vaccinated  and  pay  the  fee  therefor,  and  he  is 
hereby  authorized  to  collect  the  said  fee  from  the  person  or  persons  vaccinated. 

Hospitals. 

Sec.  22.  The  board  of  health  shall  have  the  power,  under  the  provisions  of 
this  act,  to  provide  suitable  hospitals,  to  be  situated  at  or  near  Saucelito,  and 
furnish  and  supi:)ly  the  same  with  suitable  nurses  and  attaches,  as  in  their  judg- 
ment the  jjublic  health  may  require,  and  to  remove  thereto  all  persons  afflicted 
with  cholera,  yellow  fever,  typhus  or  ship  fever. 

Record  of  births,  deaths,  etc. 

Sec.  23.  It  shall  be  the  duty  of  the  health  officer  to  keep  a  record  of  all  births, 
deaths,  and  interments  in  the  city  and  county  of  San  Francisco,  in  books  duly 
prepared  for  that  purpose.  Said  records,  when  filled,  shall  be  deposited  in  the 
office  of  the  county  recorder,  and  produced  when  required  for  public  insj^ec- 
tion. 

Interment  without  certificate. 

Sec.  24.  Every  sexton,  undertaker,  superintendent  of  a  cemetery,  or  other 
person,  who  shall  inter,  or  cause  to  be  interred,  any  human  body,  without 
having  first  obtained  and  filed  with  the  health  officer  a  physician's  certificate,  or 
the  coroner's  certificate,  setting  forth,  as  nearly  as  possible,  the  name,  age, 
color,  sex,  and  date  and  place  of  birth,  date  and  locality  of  death,  and  cause  of 
death  of  the  deceased,  shall  be  deemed  guilty  of  misdemeanor,  and  on  convic- 
tion shall  be  punished  as  provided  in  section  tw^enty-nine  of  this  act. 

Physician's  certificate. 

Sec.  25.  It  shall  be  the  duty  of  the  physicians,  when  deaths  occur  in  their 
practice,  to  give  a  certificate  to  that  efi"ect,  with  the  name,  age,  color,  nativity, 
date  of  death,  place  of  death,  and  occupation  of  deceased.  For  this  purpose, 
blank  cei-tificates  shall  be  kept  at  the  health  office. 

379 


3032  POLITICAL  CODE. 

Notice  ofhirth  to  he  given. 

Sec.  26.  It  shall  be  the  duty  of  the  parent  or  parents,  or,  in  the  case  of  their 
death,  then  of  the  next  of  kin  in  attendance,  or,  if  there  be  no  relative  in  attend- 
ance, then  of  the  person  having  charge  or  control  of  any  child  born  witbin  the 
limits  of  the  city  and  county  of  San  Francisco,  to  report  the  same  to  the  health 
officer  within  ten  days  of  its  birth,  giving  name  (if  named),  date  of  birth,  sex, 
color;  name,  birthi)lace,  and  occupation  of  father;  maiden  name  and  birthplace 
of  mother;  and  place  of  birth.  Blanks  for  this  purpose  shall  be  kept  at  the 
health  office.  All  persons  failing  to  comj)ly  with  the  provisions  of  this  section 
shall  be  deemed  guilty  of  a  misdemeanor,  and,  on  conviction  thereof,  shall  be 
punished  by  fine  of  not  less  than  five  dollars  nor  more  than  fift}^  dollars. 
[Amendmcnf,  approved  March  IG,  187G;  1875-G,  305;  took  effect  from  passage. 

Returns  of  permits  for  interments. 

Sec.  27.  Superintendents  of  cemeteries  within  the  boundaries  of  the  city  and 
county  of  San  Francisco,  shall  make  returns  to  the  health  officer  on  each 
Monday  of  all  permits  for  interment  received  by  them  during  the  preceding 
week. 

Rem,oval  of  bodies. 

Sec.  28.  No  superintendent  of   any  cemetery  shall  remove,  or   cause  to  be 
removed,  disinter,  or  cause   to  be  disinterred,  any  corj)se  that  shall  have  been' 
deposited  in  said  cemeters',  without  a  permit  from  the  health  officer,  or  by  order 
of  the  coroner. 

Violations  of  this  act. 

Sec  29.  Any  person  who  shall  neglect  or  refuse  to  comply  with  any  of  the 
provisions  of  this  act  shall  be  deemed  guilty  of  misdemeanor,  and  on  conviction 
thereof  shall  be  punished  by  a  fine  of  not  less  than  one  hundred  dollars  nor 
more  than  one  thousand  dollars,  or  by  imiirisonment  in  the  county  jail  not 
exceeding  twelve  months,  or  by  both  fine  and  imprisonment. 

Removal  of  nuisances. 

Sec.  30.  Whenever  a  nuisance  shall  exist  on  the  property  of  any  non-resident, 
or  any  property  the  owner  or  owners  of  which  cannot  be  found  by  either  health 
inspector,  after  diligent  search,  it  shall  be  the  duty  of  the  board  of  health  to 
cause  the  said  nuisance  to  be  at  once  removed,  and  to  draw  upon  the  general 
fund  for  such  sums  as  may  be  required  for  its  removal,  not  to  exceed  two  hun- 
dred dollars;  provided,  that  whenever  a  larger  expenditure  is  found  necessarj' 
to  be  made  for  the  removal  or  sujipression  of  an}^  nuisance,  the  board  of  super- 
visors of  said  city  and  county  may,  upon  the  written  application  of  the  board 
of  liealth,  by  ordinance,  appropriate,  allow,  and  order  paid  out  of  the  general 
fund  such  sum  or  sums  as  may  be  necessary  for  that  purpose;  provided  further, 
that  in  all  cases  where  such  expenditure  will  exceed  five  hundi-ed  dollars,  no 
appropriation  shall  be  made  for  that  purpose,  unless  the  city  and  county  attor- 
ney shall  first  give  his  opinion,  in  writing,  that  such  ex2:)enditure  would  be  a 
legal  charge  against  the  proj^erty  affected  thereby.  The  auditor  shall  audit  and 
the  treasurer  shall  pay  all  appropriations  of  money  made  in  pursuance  of  this 
section,  in  the  same  manner  as  is  now  i)rovided  by  law  for  auditing  and  paying 
demands  upon  the  treasury.  [Amendineiii,  approved  March  IG,  1876;  1875-G,  305; 
took  effect  from  passage. 

Jurisdiction. 

Sec.  31.  The  police  judge's  court  of  the  city  and  county  of  San  Francisco 
shall  have  full  and  complete  jurisdiction  of  all  actions  and  proceedings  for  the 
violation  of  the  provisions  of  this  act. 

880 


GENERAL  POLICE  OF  STATE.  3032 

Fee  hook. 

Sec.  32,  It  shall  be  the  duty  of  the  health  officer  to  have  kept  in  his  office  a 
book  in  which  shall  be  entered  all  fees  collected  by  him;  and  he  shall  cause  the 
same  to  be  paid  over  to  the  city  and  county  treasurer  weekly,  under  oath,  to  the 
credit  of  the  general  fund. 

Bond. 

Sec.  33.  The  health  officer,  before  entering  on  his  duties,  shall  give  bonds 
with  good  and  sufficient  security,  to  be  approved  by  the  board  of  health,  in  the 
sum  of  ten  thousand  dollars  for  the  faithful  performance  of  his  duties. 
Oaths. 

Sec  34.  Any  member  of  the  board  of  health,  dej^uty  health  officer,  or  secre- 
tary of  the  health  dej^artment  shall  be  empowered  to  administer  oaths  on  busi- 
ness connected  with  that  department. 

Sec.  35.  All  acts  or  parts  of  acts  in  conflict  with  this  act  or  any  of  its  provis- 
-ions,  are  hereby  repealed. 

Sec  36.  This  act  shall  take  effect  immediately  after  its  passage. 

An  Act  ameudatory  of  aud  supplementaiy  to  the  foregoing  act  of  April  4,  1870. 
Approved  March  16,  1876;  1875-6,  305. 

Quarantine  officer  and  Ms  bond. 

Section  1.  From  and  after  the  passage  of  this  act  the  deputj^  health  officer  of 
the  city  and  county  of  San  Francisco  shall  be  known  as  the  quarantine  officer. 
He  shall  have  power  to  perform  all  acts  which  he  has  heretofore  performed 
under  the  title  of  dejDuty  health  officer,  and  all  acts  which  quarantine  officers  are 
usually  authorized  to  i^erform.  He  shall  give  bonds,  with  good  and  sufficient 
security,  to  be  ajoproved  by  the  board  of  health,  in  the  sum  of  five  thousand 
dollars. 

Health  inspectors,  salaries  of. 

Sec  2.  There  shall  be  four  health  inspectors  for  the  city  and  county  of  San 
Francisco,  who  shall  be  appointed  b}'  the  board  of  health,  and  shall  receive 
twelve  hundred  dollars  per  annum  each,  to  be  paid  in  the  same  manner  as  is 
provided  for  the  payment  of  the  salaries  of  the  other  appointees  of  the  board 
of  health. 

[Sec  3  contained  the  amendment  to  section  30  of  the  foregoing  act,  therein 
inserted.] 

Transportation  of  deceased  persons. 

Sec  4.  No  person,  master,  captain,  or  conductor,  in  cliarge  of  any  boat,  ves- 
sel, railroad  car,  or  public  or  private  conveyance,  shall  receive  for  transportation, 
or  shall  transport  the  body  of  any  person  who  has  died  within  the  limits  of  the 
city  and  county  of  San  Francisco,  without  obtaining  a  permit  for  the  same 
from  the  health  officer,  which  permit  must  accompany  the  body  to  its  destina- 
tion; and  no  person,  master,  captain,  or  conductor,  as  aforesaid,  shall  bring 
into  or  transport  through  the  said  city  and  county  the  dead  body  of  any  per- 
son, unless  it  be  accompanied  with  a  certificate  from  some  proper  authority  of 
the  place  whence  it  came,  stating  name,  age,  sex,  and  cause  of  death,  which 
certificate  shall  be  filed  at  the  health  office;  provided,  that  in  no  case  shall  the 
body  of  any  person  who  died  of  a  contagious  disease  be  brought  to  the  city 
within  one  year  of  the  day  of  death, 

[Sec  5  contained  the  amendment  to  section  26  of  the  foregoing  act,  therein 
inserted,] 

Sec  6.  All  acts  and  parts  of  acts  in  conflict  with  the  provisions  of  this  act  are 
hereby  repealed. 

Sec  7.  This  act  shall  take  effect  from  and  after  its  passage. 

381 


3042-3049  POLITICAL  CODE. 

ARTICLE  IV. 

HEALTH    EEGULATIONS    FOB    THE    CITY    OF    SACRAMEMTO. 

3042.  Board  of  health,  xclin  and  hoxo  appointed. 

Sec.  3042.  The  board  of  trustees  of  tlie  city  of  Sacramento  may  establish 
by  ordinance  a  board  of  health  therefor,  to  consist  of  five  practicing  physi- 
cians, graduates  of  a  medical  college  of  recognized  respectability;  and  the  presi- 
dent of  the  board  of  trustees  is  ex  officio  president  of  the  board. 

3043.  Term  and  vacancies. 

Sec.  3043.  The  members  of  the  board  hold  their  offices  at  the  joleasure  of  the 
appointing  power. 

3044.  Poioers  of  the  board  of  health. 

Sec.  3044.  The  board  of  health  of  the  city  of  Sacramento  has  a  general  su- 
pervision of  all  the  matters  appertaining  to  the  sanitary  condition  of  the  city, 
and  may  make  such  rules  and  regulations  in  relation  thereto  as  are  not  incon- 
sistent with  law. 

3045.  Pcd  houses,  how  located  and  conducted. 

Sec  3045.  The  board  of  health  may  locate  and  establish  pest  houses,  and 
cause  to  be  removed  thereto  and  kept  any  person  having  a  contagious  or  infec- 
tious disease;  may  discontinue  or  remove  the  same,  and  make  such  rules  and 
regulations  regarding  the  conduct  of  the  same  as  are  needful. 

3046.  Death  records. 

Sec.  304G.  The  board  of  health  must  exercise  a  general  supervision  over  the 
death  records  of  the  city  of  Sacramento,  and  may  adopt  such  forms  and  regu- 
lations for  the  use  and  government  of  physicians,  undertakers,  and  sujDerintend- 
ents  of  cemeteries  as  in  their  judgment  may  be  best  calculated  to  secure  relia- 
ble statistics  of  the  mortality  in  the  city  and  prevent  the  spread  of  disease. 

3047.  Enforcement  of  regulations. 

Sec.  3047.  The  board  of  trustees  of  the  city  of  Sacramento  must,  by  ordi- 
nance or  otherwise,  provide  for  enforcing  such  orders  and  regulations  as  the 
board  of  health  may  from  time  to  time  adopt;  and  in  times  of  epidemics,  or 
when  deemed  necessarj'  by  the  board  of  health,  a  health  officer  must  be  em- 
ployed to  enforce  the  laws  in  relation  to  the  sanitary  condition  of  the  city. 

3048.  Expenses,  how  paid. 

Sec  3048.  All  expenses  necessarily  incurred  in  carrying  out  the  provisions  of 
this  article  must  be  jDrovided  for  by  the  board  of  trustees  of  the  city  of  Sacra- 
mento, who  may  make  appropriation  therefor  out  of  the  special  street  fund,  if 
the  same  is  sufficient;  if  not,  they  may  by  taxation  provide  a  fund  therefor. 

3049.  Compensation,  how  fixed. 

Sec  3049.  The  board  of  trustees  must  fix  the  compensation  of  the  board  of 
health  and  the  health  officer. 

An  Act  to  establish  aud  maintain  a  dispensary  in  the  city  of  Sacramento. 

Approved,  March  23,  1872  ;  1871-2,  531. 

Establishment  of  dispensary. 

Section  1.  The  board  of  health  of  the  city  of  Sacramento,  consisting  of  Ira 
E.  Oatman,  T.  M,  Logan,  F.  W.  Hatch,  W.  R.  Cluness,  and  G.  L.  Simmons, 
are  hereby  empowered  and  required  to  establish  a  dispensary  for  the  accommo- 
dation of  the  sick  poor  of  the  city  and  county  of  Sacramento,  on  the  lot  belong- 
ing to  the  county  of  Sacramento,  on  the  northwest  corner  of  Seventh  and  I 
streets,  in  said  city;  and  all  bills  approved  by  said  boai-d  of  health  for  tliis 
purpose  shall  be  allowed  and  ordered  paid,  by  the  board  of  supervisors  of  the 
county  of  Sacramento,  out  of  the  general  fund;  provided,  that  all  expense  for 

382 


GENERAL  POLICE  OF  STATE.  3249-3060 

the  establishment  of  such  dispensary  and  furnishing  of  the  same  shall  not  ex- 
ceed two  thousand  dollars. 

Physician. 

Sec.  2.  The  board  of  supervisors  of  the  county  of  Sacramento  shall  require 
the  county  physician,  or  a  regularly  educated  assistant,  to  take  charge  of  said 
dispensary,  and  to  keep  an  office  ojjen  therein  for  at  least  two  hours  in  each  day 
of  the  year,  at  which  time  he  shall  give  advice  and  medicines  to  poor  out-pa- 
tients and  applicants  from  the  Howard  benevolent  society,  and  receive  orders 
for  visits  to  the  sick  poor  at  their  homes,  and  said  assistant  shall  receive  a  com- 
pensation not  to  exceed  fifty  dollars  per  month. 

Regulations. 

Sec.  3.  During  the  absence  of  the  medical  attendant  the  dispensary  shall  be 
accessible,  at  all  times  of  the  day  or  night,  to  any  member  of  the  police  of  the 
city  of  Sacramento,  to  any  practicing  physician,  or  to  any  officer  of  the  How- 
ard benevolent  "society  who  may  desire  to  obtain  accommodations  for  patients 
in  cases  of  accident  or  sudden  sickness,  where  an  immediate  removal  to  the 
county  hosjDital  is  impracticable,  or  where  such  an  attempt  would  endanger  life. 
Prohibition. 

Sec  4.  No  person  possessed  of  property  of  any  description  shall  receive  as- 
sistance, as  an  out-patient,  from  the  dispensary,  and  no  cases  of  venereal  dis- 
ease in  any  form  shall  be  treated  at  the  expense  of  the  county  in  this  institution. 
Control  and  management. 

Sec.  5.  After  the  establishment  of  the  dispensary  by  the  board  of  health  of 
the  city  of  Sacramento  the  said  board  shall  exercise  a  general  supervision  over 
its  concerns,  adopting  such  improvements  in  its  management  as  from  time  to 
time  may  be  required.  They  shall  require  from  the  attending  physician  stated 
reports  in  regard  to  cases  treated  by  him,  and  certify  to  the  board  of  supervi- 
sors of  the  county  as  to  the  correctness  of  all  bills  for  medicines  or  incidental 
expenses;  provided,  that  in  no  case  shall  any  bills  for  medicines  and  incidental 
expenses  be  allowed  which  exceed  in  the  aggregate  the  sum  of  one  hundred  dol- 
lars per  month.  No  compensation  shall  be  allowed  to  any  member  of  the  board 
of  health  for  services  rendered  in  carrying  out  the  purposes  of  this  act. 

Payment  of  expenses. 

Sec.  6.  The  board  of  supervisors  of  Sacramento  county  are  hereby  required 
to  allow  and  order  paid  out  of  the  hospital  fund  all  bills  for  the  maintenance  of 
this  dispensary  which  may  be  approved  by  the  board  of  health  of  the  city  of 
Sacramento,  in  compliance  with  the  jDrecediug  sections. 

Sec  7.  This  act  shall  take  effect  and  be  in  force  from  and  aft^r  its  passage. 

ARTICLE  V. 

HEALTH    AND    QUARANTINE    OF    OTHEE    CITIES,  TOWNS,  AND    HARBORS. 

3059.  Boai'ds  of  supervisors  may  adopt  Ai^ticle  III. 

Sec.  3059.  The  board  of  supervisors  of  any  county  in  which  there  is  a  poi-t  of 
entry  or  harbor,  for  which  there  is  not  otherwise  provided  health  and  quaran- 
tine regulations,  may  by  an  ordinance  adopt  the  whole  or  any  part  of  the 
provisions  of  Article  III  of  this  chapter,  appoint  a  board  of  health,  or  health 
officer,  locate  quarantine  grounds  when  necessary,  and  provide  for  the  enforce- 
ment of  health  and  quarantine  regulations. 

3060.  Boards  of  supervisors  may  adopt  Article  IV. 

Sec  3060.  In  like  manner  the  board  of  supervisors  of  any  county  in  which 
there  is  an  unincorporated  city  or  town,  for  which  there  is  not  otherwise  pro- 

383 


3060-3078  POLITICAL  CODE. 

Tided  a  board  of  liealtli  or  health  regulations  in  time  of  epidemics,  or  the 
existence  of  contagious  or  infectious  diseases,  may  by  an  ordinance  adopt  for 
such  city  or  town,  in  whole  or  in  part,  the  provisions  of  Article  IV  of  this 
chapter  for  some  definite  period  of  time;  and  appoint  therefor  a  board  of  health. 
8061.  Incorporated  cities  or  townn  may  adopt  Articles  III  and  IV. 

Sec.  30G1.  The  trustees,  council,  or  other  corresponding  board  of  any  incor- 
porated town  or  city  in  this  state,  may  by  ordinance  adopt  the  whole  or  any 
part  of  Articles  III  and  IV  of  this  chapter,  or  of  either  of  them,  as  provided 
in  tlie  preceding  section  for  the  boards  of  supervisors. 

3062.  Jlaij  appmint  health  officer  in  lieu  of  board. 

Skc.  30G2.  In  the  place  of  appointing  a  board  of  health,  the  board  of  super- 
visors or  the  city  or  toAvn  authorities  may  appoint  a  health  officer,  with  all  the 
duties  and  powers  of  the  board  of  health  and  health  officer,  as  specified  in  the 
two  2>receding  articles. 

3063.  Fer  capita  or  property  tax,  hoiv  levied. 

Skc.  30G3.  All  necessaiy  expenses  of  enforcing  this  article  are  charges  against 
the  counties,  cities,  or  towns  resj^ectively,  for  the  jDayment  of  which  the  county, 
city,  or  town  may  levy  a  per  capita  tax  of  not  exceeding  three  dollars,  or  a 
property  tax  of  not  exceeding  one  fourth  of  one  per  cent,  yearly  until  the  same 
is  paid. 

CHAPTEK  III. 

REGISTRY   OF   BIRTHS,    MARRIAGES,    AND   DEATHS. 

3074.  Begistry  of  marriages. 

Sec.  3074.  All  persons  who  perform  the  marriage  ceremony  must  keep  a  regis- 
try of  the  time  of  each  marriage  so  celebrated,  the  residence,  the  names  in  full, 
the  place  of  birth,  the  age  and  condition  of  each  party,  and  whether  either  i^arty 
has  ever  been  before  married;  if  so,  to  whom  and  whether  the  person  with  whom 
such  former  mamage  was  contracted  is  living  or  dead. 

3075.  Begistry  of  births. 

Sec.  3075.  All  physicians  and  professional  midwives  must  keep  a  registry  of 
the  time  of  each  birth  at  which  they  assist  professionally,  the  sex,  race,  and 
color  of  the  child,  and  the  names  and  residence  of  the  parents. 

3076.  Begistry  of  death. 

Sec.  3076.  Physicians,  who  attend  deceased  persons  in  their  last  sickness; 
clergymen,  who  officiate  at  a  funeral;  coroners,  who  hold  inquests;  sextons  and 
undertakers,  who  bury  deceased  persons;  must  each  keep  a  register  of  the  name, 
age,  residence,  and  time  of  death  of  such  person.  [Aniendmeyit,  approved  March 
30,  1874;  Amendmerds  1873-4,  42;  took  effect  July  6,  1874.^'" 

3077.  Beports  to  recorder. 

Sec  3077.  All  persons  registering  births  or  deaths  must  quarterly  file  with  the 
county  recorder  a  certified  copy  of  their  register.  All  such  certificates  must 
specify  as  near  as  may  be  ascertained  the  name  in  full,  age,  occui:)ation,  term  of 
residence  in  the  city  or  county,  birtlipLu-e,  condition,  whether  single  or  married, 
widow  or  widower,  race,  color,  last  place  of  residence,  and  cause  of  death  of  all 
decedents. 

3078.  Saine. 

Six-.  3078.  If  at  any  birth  no  physician  or  midwife  attends,  the  parents  must 
make  the  report. 

(a)  The  original  section  had  the  words  "have  at-  Instead  of  "  ofHoiate,"  and  "  sextons  who  have  burled  " 
tended  "  Instead  of  "  attend/'  also  "  have  officiated  "     instead  of  "  sextons  and  undertakers  who  bury." 

384 


GENERAL  POLICE  OF  STATE.  3079-3094 

3079.  Duties  of  recorder. 

Sec.  3079.  The  recorder  must  keep  separate  registers,  to  be  known  as  tlie 
"  Register  of  Births"  and  the  "Register  of  Deaths,"  in  which  the  births  and 
deaths  certified  to  him  must  be  numbered  in  the  order  in  which  they  are  reported 
to  him.  There  must  be  stated  in  each  register,  in  separate  cohnnns,  properly 
headed,  the  various  facts  contained  in  the  certificates,  and  the  name  and  ofiicial 
or  clerical  position  of  the  person  making  the  report.  The  recorder  must  care- 
fully examine  each  report  and  register  the  same  birth  or  death  but  once,  although 
it  may  be  reported  by  diflereut  persons. 

3080.  Report  to  secretary  of  state  board  of  health. 

Sec.  3080.  The  county  I'ecorder  must  every  thi'ee  months  transmit  to  the  sec- 
retary of  state  board  of  health,  at  Sacramento  cit}',  a  certified  abstract  of  the 
registers  of  births,  marriages,  and  deaths,  prepared  in  the  manner  prescribed 
in  the  instructions  of  the  secretary  and  upon  blanks  to  be  furnished  by  him  for 
that  purjDOse. 

3081.  Fees. 

Sec.  8081.  The  persons  reporting  births  and  deaths  to  the  recorder  must  pay 
to  him  a  fee  of  twenty-five  cents  for  the  registration  of  each  name,  which  must 
be  primarily  paid  by  the  parents  or  other  next  of  kin  to  the  person  whose  birth 
or  death  is  reported.  In  case  no  fee  is  paid  to  the  person  reporting  a  birth  or 
death  to  the  recorder  by  the  j^arents  or  next  of  kin  of  the  joerson  reported,  the 
same  must  nevertheless  be  reported  and  registered,  and  the  board  of  super- 
visors must  pay  from  the  general  fund  of  the  county  to  the  recorder  a  fee  not 
exceeding  twent^'-five  cents  for  each  name  reported. 

3082.  Penalties. 

Sec.  3082.  Any  person  on  whom  a  duty  is  imposed  by  this  chapter  who  fails, 
neglects,  or  refuses  to  perform  the  same  as  herein  required,  is  liable  to  a  penalty 
of  fifty  dollars,  to  be  recovered  by  the  district  attorney  of  the  proj)er  county 
for  the  use  of  the  general  fund  of  such  county. 


CHAPTER   IV. 

DISSECTION. 

3083.  Physicians,  etc. ,  may  obtain  dead  bodies. 

Sec.  3093.  Any  physician  or  surgeon  of  this  state,  or  any  medical  student 
under  the  authority  of  any  such  physician  or  surgeon,  may  obtain,  as  herein- 
after provided,  and  have  in  his  possession  human  dead  bodies,  or  the  parts 
thereof,  for  the  purposes  of  anatomical  inquiry  or  instruction. 

3094.  Sheriffs,  etc.,  to  give  dead  bodies  to  physicians  in  certain  cases. 

Sec.  3094.  Any  sheriff,  coroner,  keeper  of  a  county  poorhouse,  public  hos- 
pital, county  Jail,  or  state  prison,  or  the  mayor  or  board  of  supervisors  of  the 
city  of  San  Francisco,  must  surrender  the  dead  bodies  of  such  persons  as  are 
required  to  be  buried  at  the  public  expense  to -any  physician  or  surgeon,  to  be 
by  him  used  for  the  advancement  of  anatomical  science,  preference  being  always 
given  to  medical  schools  by  law  established  in  this  state,  for  their  use  in  the 
instruction  of  medical  students.  But  if  such  deceased  person  during  his  last 
sickness  requested  to  be  buried,  or  if  within  twenty-four  hours  after  his  death 
some  person  claiming  to  be  of  kindred  or  a  friend  of  the  deceased  requires  the 
body  to  be  buried,  or  if  such  deceased  person  was  a  stranger  or  traveler  who 
suddenly  died  before  making  himself  known,  such  dead  body  must  be  bmied 
without  dissection. 

25  385 


3095-3110  POLITICAL  CODE. 

3095.  Physicians,  etc.,  io  have  certificate  from  medical  society,  and  to  give  bond 
before  receiving  dead  bodies. 
Sec.  3095.  Eveiy  phvsiciau  or  surgeon,  before  receiving  a  dead  body,  must 
give  to  the  board  or  oflScer  surrendering  the  same  to  him  a  certificate  from  the 
medical  society  of  the  county  in  which  he  resides,  or  if  there  is  none,  from  the 
board  of  supervisors  of  the  same,  that  he  is  a  fit  person  to  receive  such  dead 
body.  He  must  also  give  a  bond,  with  two  sureties,  that  each  body  so  by  him 
received  will  be  used  only  for  the  promotion  of  anatomical  science,  and  that  it 
will  be  used  for  such  j)urpose  within  this  state  only,  and  so  as  in  no  event  to 
outrage  the  public  feeling. 


CHAPTER  V. 

CEMETERIES  AND   SEPULTUEE. 

3105.  Title  io  cemetery  grounds. 

Sec.  3105.  The  title  to  lands  used  as  a  public  cemetery  or  graveyard,  situated 
in  or  near  to  any  city,  town,  or  village,  and  used  by  the  inhabitants  thereof 
continuously,  without  interruption,  as  a  burial  ground  for  five  years,  is  vested 
in  the  inhabitants  of  such  city,  town,  or  village,  and  the  lands  must  not  be 
used  for  any  other  purpose  than  a  public  cemetery. 

3106.  What  constitutes  a  cemetery. 

Sec.  3106.  Six  or  more  human  bodies  being  buried  at  one  place  constitutes 
the  place  a  cemetery. 

3107.  Cemeteries,  how  laid  out  and  dedicated  on  public  lands. 

Sec  3107.  Incorporated  cities  or  towns,  and  for  unincorpoi'ated  towns  or 
villages,  the  supervisors  of  the  county,  may  survey,  lay  out,  and  dedicate  of  the 
public  lands  situated  in  or  near  such  city,  town,  or  village,  not  exceeding  five 
acres,  for  cemetery  and  burial  purposes.  The  survey  and  description  thereof, 
together  with  a  certified  cop}'  of  the  order  made  constituting  the  same  a  ceme- 
tery, must  be  recorded  in  the  recorder's  office  of  the  county  in  Vvhich  the  same 
is  located. 

3108.  Inhabitants  of  city,  toivn,  or  village  to  own  cemetery. 

Sec  3108.  The  inhabitants  of  any  city,  town,  village,  or  neighborhood  may, 
by  subscrijition  or  otherwise,  purchase  or  receive  by  gift  or  donation,  lands  not 
exceeding  five  acres,  to  be  used  as  a  cemetery,  the  title  thereof  to  be  vested  in 
such  inhabitants,  and  when  once  dedicated  to  use  for  buiial  purposes  must 
thereafter  be  used  for  no  other  purpose. 

3109.  Public  cemeteries,  under  whose  control. 

Sec  3109.  The  public  cemeteries  of  cities,  towns,  villages,  or  neighborhoods 
must  be  inclosed  and  laid  oflf  into  lots,  and  the  general  management,  conduct, 
and  regulation  of  interments,  permits  to  inter,  or  remove  interred  bodies,  the 
disp(jsition  of  lots  and  keeping  the  same  in  order,  is  under  the  jurisdiction  and 
contro]  of  the  cities  and  towns  owning  the  same,  if  incorporated;  if  not,  then 
under  the  jurisdiction  and  control  of  the  board  of  supervisors  of  the  county  in 
wliicli  they  are  situated. 

3110.  Who  exercises  jurisdiction  and  control  over. 

Sec  3110.  The  boards  of  supervisors,  city  trustees,  or  other  corresponding 
authorities  having  jurisdiction  and  control  of  cemeteries,  may  make  general 
rules  and  regtdations  therefor,  and  appoint  sextons  or  other  officers  to  enforce 
obedience  to  the  same,  with  such  other  powers  and  duties  regarding  the  cem- 
etery as  they  may  deem  necessary.  ^ 

386 


GENERAL  POLICE  OF  STATE.  3111-3139 

3111.  Register  mud  he  kept. 

Sec.  3111.  The  authority  having  control  of  a  public  cemetery  must  require 
a  register  of  name,  age,  birthplace,  and  date  of  death  and  burial  of  ever}'  body 
interred  therein,  to  be  kept  by  the  sexton  or  other  officer,  open  to  i^ublic 
inspection. 

CHAPTER  VI. 

LOST  AND   UNCLAIMED   PROPERTY. 

Article  I.  Lost  Monet  and  Goods 313G 

II.  Unclaimed  Pbopertt 3152 

ARTICLE  I. 

LOST   MONEY    AND    GOODS. 

3136  Duty  of  2')ersons  finding  lost  money,  goods,  etc. 

Sec.  3136.  If  any  person  find  any  money,  goods,  things  in  action,  or  other 
personal  property,  or  shall  save  any  domestic  animal  from  drowning  or  from 
starvation,  when  such  j)roperty  shall  be  of  the  value  of  ten  dollars  or  more,  he 
must  inform  the  owner  thereof,  if  known,  and  make  restitution  without  com- 
jDensation,  further  than  a  reasonable  charge  for  saving  and  taking  care  thereof; 
but  if  the  owner  is  not  known  to  the  party  saving  or  finding  such  property,  he 
must,  within  five  days,  make  an  affidavit  before  some  justice  of  the  peace  of  the 
county,  stating  when  and  where  he  found  or  saved  such  propei-ty,  particularly 
describing  it;  and  if  the  property  was  saved,  particularly  stating  from  what  and 
how  he  saved  the  same,  stating  therein  whether  the  owner  of  the  property  is 
known  to  him,  and  that  he  has  not  secreted,  withheld  or  disposed  of  any  part 
of  such  property.  [Amendment,  approved  March  30,  1874;  Amendments  1873-4, 
42;  took  effect  July  6,  1874.''" 

3137.  Justice  to  appoint  appraisers — Duty  of  appraisers. 

Sec.  3137.  The  justice  must  then  summon  three  disinterested  householders 
to  appraise  the  same.  The  appraisers,  or  anj'  two  of  them,  must  make  two  lists 
of  the  valuation  and  description  of  such  property,  and  sign  and  make  oath  to 
the  same,  and  deliver  one  of  the  lists  to  the  finder,  and  the  other  to  the  justice 
of  the  iDcace. 

3138.  Justice  to  file  list  of  appraisers. 

Sec.  3138.  The  justice  must  file  such  list,  and  the  finder  must  transmit  a 
copy  of  the  same  to  the  recorder  of  the  county,  who  must  record  the  same  in  a 
book  known  as  the  "Estray  and  Lost  Property  Book,"  within  fifteen  da^'s,  and 
the  finder  must  at  once  set  up  at  the  court-house  door  and  four  other  public 
places  in  the  township  or  city  a  copy  of  such  valuation  and  description  of 
property. 

3139.  Proceedings,  if  no  oivner  appear  within  six  months. 

Sec.  3139.  If  no  owner  appears  and  proves  the  proj^erty  within  six  months, 
and  the  value  thereof  does  not  exceed  twent}'  dollars,  the  same  vests  in  the 
finder;  but  if  the  value  exceed  twenty  dollars,  the  finder  must,  within  thirty 
days  after  setting  up  the  list  mentioned  in  the  preceding  section,  cause  a  copy 
of  the  description  to  be  inserted  in  some  newspaper  printed  in  the  county,  if 
there  be  one,  and  if  not,  in  some  newspaper  piinted  in  the  state,  for  three 

(a)   Original  section:  care  thereof;  but  if  the  owner  is  not  known,  he  must, 

Stc.  3iat5.   If   any  person  find   any  money,   goods,  within  five  days,  make  an  affidavit  before  some  justice 

things  in  action,  or  other  personal  property  of  the  of  the  county,  stating  when  and  where  he  found  the 

value  of  ten  dollars  or  more,  he  must  inform  the  owner  same,  particularly  describing  it,  that  the  owner  is  un- 

thereof ,  if  known ,  and  make  restitution  without  com-  known  to  him,  and  that  he  has  not  secreted,  withheld, 

pensation,  further  than  a  reasonable  charge  for  taking  or  disposed  of  any  part  of  such  property. 

387 


3139-3155  POLITICAL  CODE. 

weeks;  and  if  no  owner  prove  tlie  property  witliin  one  year  after  such  publica- 
tion it  vests  in  the  finder. 

3140.  Finder  to  restore  property,  ichen. 

Sec.  3140.  If,  within  one  year,  an  owner  appears  and  proves  the  property 
and  pays  all  reasonable  charges,  including  fees  of  officers,  the  finder  must 
restore  the  same  to  him.  On  failure  to  make  restoration  of  such  property,  or 
the  ajipraised  value  thereof,  on  being  tendered  such  charges  and  fees,  the 
owner  may  recover  the  same  or  the  value  thereof  by  civil  action  in  any  court 
having  jurisdiction. 

3141.  Finder  failing  to  make  discovery,  penalty. 

Sec  3141.  If  auy  person  find  any  money,  property,  or  other  valuable  thing, 
and  fail  to  make  discovery  of  the  same  as  required  by  this  article,  he  forfeits  to 
the  owner  double  the  value  thereof. 

3142.  Proof,  hoio  made. 

Sec.  3142.  The  proof  rec^uired  by  this  article  must  be  made  before  the  clerk 
with  whom  the  list  provided  for  herein  is  filed,  and  if  he  is  satisfied  therefrom 
that  the  person  claiming  to  be  is  the  owner,  he  must  certify  that  fact  under  his 
hand  and  the  seal  of  the  county  court. 

ARTICLE  II. 

UNCLAIMED    PROPERTY. 

3152.  Comvion  carriers  may  retain  goods  until  charges  are  paid. 

Sec  3152.  When  any  goods,  merchandise,  or  other  property  has  been  received 
by  any  railroad  or  express  company,  or  other  common  carrier,  commission  mer- 
chants, innkeepers,  or  warehousemen,  for  transi:)ortation  or  safe  keeping,  and  are 
nut  delivered  to  the  owner,  consignee,  or  other  authorized  j^erson,  the  carrier, 
commission  merchant,  innkeeper,  or  warehouseman,  may  hold  or  store  the  same 
with  some  responsible  person  until  the  freight  and  all  just  and  reasonable  charges 
are  paid. 

3153.  Property  unclaimed  ivithin  sixty  days  to  be  sold,  how. 

Sec  3153.  If  no  joerson  calls  for  the  proj^erty  within  sixty  days  from  the 
receipt  thereof  and  pays  freight  and  charges  thereon,  the  carrier,  commission 
merchant,  innkeeper,  or  warehouseman  may  sell  such  property,  or  so  much 
thereof,  at  auction  to  the  highest  bidder,  as  will  pay  freight  and  chai'ges,  first 
having  given  twenty  days'  notice  of  the  time  and  place  of  sale  to  the  owner, 
consignee,  or  consignor,  when  known,  and  by  advertisement  in  a  daily  pajier 
ten  days  (or  if  in  a  weekly  paper,  four  weeks),  published  where  such  sale  is  to 
take  place;  and  if  any  surplus  is  left  after  paying  freight,  storage,  cost  of  adver- 
tising, and  other  reasonable  charges,  the  same  must  be  joaid  over  to  the  owner 
of  such  property-  at  any  time  thereafter,  upon  demand  being  made  therefor 
within  sixty  days  after  the  sale. 

3154.  Proceeds  unclaimi'd ,  where  to  go. 

Sec  31.54.  If  the  owner  or  his  agent  fails  to  demand  such  suii)lus  within  sixty 
days  of  the  time  of  such  sale,  then  it  must  be  paid  into  the  county  treasury, 
subject  to  the  order  of  the  owner. 

3155.  Carrier's  responsibility  ceases,  when. 

Sec  3155.  After  the  storage  of  goods,  merchandise,  or  property,  as  herein 
provided,  the  responsibility  of  the  earner  ceases,  nor  is  the  person  with  whom 
the  same  is  stored  liable  for  any  loss  or  damage  on  account  thereof,  unless  the 
same  results  from  his  negligence  or  want  of  proper  care. 

388 


GENEEAL  POLICE  OF  STATE.  315G-3171 

3156.  Property  upon  which  advances  are  due  may  he  sohl,  lolien. 

Sec.  3156.  Wlien  any  commission  mcrcliant  or  warehouseman  receives  on 
consignment  produce,  merchandise,  or  other  property,  and  makes  advances 
thei'eon,  either  to  the  owner  or  for  freight  and  charges,  he  may,  if  the  same  is 
not  paid  to  him  within  sixty  days  from  the  date  of  such  advances,  cause  the 
produce,  merchandise,  or  propex'ty  on  which  the  advances  were  made,  to  be 
advertised  and  sold  as  provided  herein. 

3157.  Fees  of  officers. 

Sec.  3157.  The  fees  of  officers  \ander  this  chapter  are  the  same  allowed  for 
similar  services  in  other  cases  provided  in  this  code,  to  be  paid  by  the  taker  up 
or  finder,  and  recovered  of  the  owner. 

CHAPTER  yil. 

MARKS   AND   BRANDS. 

Abticle  I.  Mabks  and  Brands 3107 

II.  Regulations  relating  to  Marks  and  Brands 3182 

III.  Tbade-Maeks 3196 

ARTICLE  I. 

MARKS    AND    BRANDS. 

3167.  Owners  of  cattle  to  keep  a  mark,  brand,  and  counterhrand. 

Sec.  3167.  Owners  of  horses,  mules,  cattle,  sheep,  goats,  or  hogs  running  at 
large  must  have  a  mark,  brand,  and  counterbrand  different  from  any  one  in 
use  by  any  other  person,  so  far  as  may  be  known. 

3168.  To  record  brands. 

Sec.  3168.  Every  owner  must  record  with  the  recorder  of  the  county  his 
mark,  brand,  and  counterbrand  by  delivering  to  the  recorder  his  mark,  cut 
upon  a  piece  of  leather,  and  his  brand  and  counterbrand  burnt  upon  it,  which 
shall  be  kej)t  in  the  recorder's  ofl&ce.  A  certified  copy  thereof  made  by  the 
recorder,  with  the  seal  of  his  office  attached  thereto,  is  evidence  on  the  trial  of 
any  action  in  a  court  of  competent  jurisdiction  as  to  the  ownership  of  all  animals 
legally  marked  or  branded.  The  recorder  must  enter  in  a  book  to  be  kept  by 
him  for  that  purpose  a  cox)y  of  the  marks,  brands,  and  counterbrands;  but  he 
must  first  be  satisfied  that  such  brand  and  counterbrand  tendered  to  him  for 
record  is  unlike  any  other  mark,  brand,  or  counterbrand  in  the  county,  and, 
as  far  as  his  knowledge  extends,  is  different  from  any  other  in  the  state.  For 
recording  the  mark,  brand,  and  counterbrand  the  recorder  is  entitled  to  de- 
mand and  receive  one  dollar. 

3169.  Recorders'  duties  respecting  recorded  marks,  etc. 

Sec.  3169.  Every  recorder  in  this  state  must  transmit  to  the  recorders  of  the 
adjoining  counties  a  transcript  of  all  the  marks,  brands,  and  counterbrands 
recorded  in  his  office,  to  be  filed  by  such  recorders  in  their  offices,  and  reference 
thereto  must  be  made  in  every  case  of  application  for  the  record  of  marks  and 
brands. 

3170.  Marks  and  brands  not  laitful  unless  recorded. 

Sec.  3170.  No  mark,  brand,  or  counterbrand  is  lawful  unless  recorded  as 
provided  in  this  article,  nor  shall  any  person  use  more  than  one  mark  or  brand, 
unless  he  is  the  owner  of  more  than  one  ranch  or  farm. 

3171.  CerHain  mai'ks  not  allowed. 

Sec.  3171.  No  person  must  use  a  mark  by  cutting  off  the  ear  or  by  cutting 
the  ear  on  both  sides  to  a  point. 

389 


3172-3196  POLITICAL  CODE. 

3172.   Branding  of  animah. 

Sec.  3172.  Every  person  must  mark  or  brand  Lis  horses  and  mules  before 
they  are  eight  mouths  old,  and  cattle  befoi'e  they  are  twelve  months  old,  on  the 
hip  or  hinder  part,  and  mark  or  brand  his  slieej),  goats,  and  hogs,  before  they 
are  six  months  old.  On  the  trial  of  unj  action  to  recover  the  possession  of  any 
animal  which  is  marked  or  branded,  the  mark  or  brand  is  prima  facie  evidence 
that  the  animal  belongs  to  the  owner  of  the  mark  or  brand.  When  a  dispute 
occurs  in  regard  to  a  mark  or  brand,  the  person  first  recording  the  same  is 
entitled  thereto.  [Amendment,  approved  March  30,  1871;  Amendmenls  1873-4, 
43;  took-  effect  July  6,  1874.<''> 

ARTICLE  II. 

REGULATIONS    RELATING    TO^MARKS     AND    BRANDS. 

3182.  Begnlaiions  for  selling  catUe,  etc. 

Sec.  3182.  Persons  selling  cattle,  horses,  mules,  jacks,  or  jennies,  must  coun- 
terbraud  them  on  the  shoulders,  or  give  a  written  descriptive  bill  of  sale. 

3183.  Penalty  for  using  more  than  one  mark  or  an  unrecorded  mark. 

Sec.  3183.  Any  person  who  uses  any  mark,  brand,  or  counterbrand  other 
than  the  one  recorded  by  him,  except  by  the  consent  of  the  owner  of  such 
other  mark,  brand,  or  counterbrand,  or  uses  more  than  one  mark,  brand  or 
counterbrand  otherwise  than  is  j)rovided  in  Article  I,  or  suifers  his  ward,  child, 
apprentice,  or  servant  to  use  any  other  than  his  own  mark,  brand,  or  counter- 
brand  on  those  of  the  stock  they  run  with,  forfeits  to  any  person  suing  therefor 
the  stock  so  marked  or  branded  with  any  other  than  the  proj^er  mark  or  brand 
recorded  by  him.  This  section  does  not  extend  to  any  stock  which  may  descend 
to  any  ward,  child,  apprentice,  or  servant  by  the  gift  or  devise  of  any  person 
other  than  the  guardian,  jDarent,  or  master  of  such  ward,  child,  apprentice,  or 
seiwant;  but  the  marks,  brands,  and  counter  brands  of  such  minors,  apprentices, 
or  servants  must  be  recorded  as  other  marks,  brands,  and  counterbrands. 

3184.  Fraudulently  rtiismarking  cattle. 

Sec.  3184.  If  any  person  has  knowledge  of  any  person,  who,  with  the  intent 
to  defraud  or  willingl}-  mismarks  or  misbrands  any  stock  not  his  own,  or  kills 
any  stock  running  at  lai'ge  having  a  proper  owner,  the  person  having  such 
knowledge  must,  within  ten  days  thereafter,  give  information  thereof  to  some 
justice  of  the  peace  of  the  proper  county. 

3185.  Hides  of  slaughtered  cattle  to  he  kept. 

Sec.  3185.  All  persons  slaughtering  cattle  must  keep  the  hides,  with  the  ears 
attached,  for  fifteen  days;  and  all  i:)ersons  having  such  hides  in  their  possession 
must  exhibit  the  same  for  examination  on  demand  being  made  by  any  person. 

ARTICLE  III. 

TRADE-MARKS. 

3196.   "  Trademarks"  defined. 

Sec.  319G.  The  phrase  "trade-mark"  as  used  in  this  chapter  includes 
eveiy  description  of  word,  letter,  device,  emblem,  stamp,  imprint,  brand, 
printed  ticket,  label,  or  wrajiper  usually  affixed  by  any  mechanic,  manufacturer, 
druggist,  merchant,  or  tradesman,  to  denote  any  goods  to  be  goods  imported, 
manufactured,  i)roducfd,  compounded,  or  sold  by  him,  other  than  anj^  name, 
word,  or  expression  generally  denoting  any  goods  to  be  of  some  particular  class 
or  description. 

(a)  The  original  Bection  Lad  the  word  "  primary  "  instead  of  "  prima  facie." 

390 


GENEEAL  POLICE  OF  STATE.  3197-3212 

3197.  Person  may  secure  exclusive  use  of  trade-mark,  hoiu. 

Sec.  3197,  Auy  person  may  secure  the  exelush^e  use  of  any  sucli  trade-mark 
or  name  b3^  filing  with  the  secretar}^  of  state  his  claim  to  the  same  and  a  copy 
or  description  of  such  trade-mark  or  name,  with  his  affidavit  attached  thereto, 
certified  to  bj^  any  officer  authorized  to  take  acknowledgments  of  conveyances, 
setting  forth  that  he  (or  the  firm  or  corporation  of  which  he  is  a  member)  is  the 
exclusive  owner  or  agent  of  the  owner  of  such  trade-mark  or  name. 

3198.  Record  of  trade-marks  kept  by  secretary  of  state. 

Sec.  3198.  The  secretary  of  state  must  keep  for  public  examination  a  record 
of  all  trade-marks  or  names  filed  in  his  office,  with  the  date  when  filed  and 
name  of  claimant;  and  must  at  the  time  of  filing  collect  from  such  claimant  a 
fee  of  three  dollars  in  gold  coin,  to  be  paid  into  the  state  library  fund. 

3199.  Original  oivners  of  trade-marks. 

Sec.  3199.  Any  person  who  has  first  adopted,  recorded,  and  used  a  trade- 
mark or  name,  whether  within  or  beyond  the  limits  of  this  state,  is  its  original 
owner.  Such  ownership  may  be  transferred  in  the  same  manner  as  personal 
property,  and  is  entitled  to  the  same  protection  by  suits  at  law;  and  any  court 
of  competent  jurisdiction  may  restrain,  by  injunction,  any  use  of  trade-marks 
or  names  in  violation  of  this  chapter. 


CHAPTEE  VIII. 

WEIGHTS  AND   MEASUEES. 

3209.  Standard  of  weights  and  measur-es. 

Sec.  3209.  The  standard  weights  and  measures  now  in  charge  of  the  sec- 
retary of  state  being  the  same  that  were  furnished  to  this  state  by  the  govern- 
ment of  the  United  States,  and  consisting  of  one  standard  yard  measure;  one 
set  of  standard  weights,  comprising  one  troy  pound,  and  nine  avoirdupois 
weights  of  one,  two,  three,  four,  five,  ten,  twenty,  twenty-five,  and  fifty  pounds, 
resj)ectively;  one  set  of  standard  troy  ounce  weights,  divided  decimally  from 
ten  ounces  to  the  one  ten-thousandth  of  an  ounce;  one  set  of  standard  liquid 
capacity  measures,  consisting  of  one  wine  gallon  of  two  hundred  and  thirty-one 
cubic  inches,  one  half  gallon,  one  quart,  one  pint,  and  one  half  pint  measure; 
and  one  standard  half  bushel,  containing  one  thousand  and  seventy-five  cubic 
inches  and  twenty-one  hundredths  of  a  cubic  inch,  according  to  the  inch 
hereby  adopted  as  the  standard,  are  the  standards  of  weights  and  measures 
throughout  the  state. 

3210.  Unit  of  extension. 

Sec.  3210.  The  standard  yard  is  the  unit  or  standard  measure  of  length  and 
surface  from  which  all  other  measures  of  extension,  whether  lineal,  superficial,  or 
solid,  are  derived  and  ascertained. 

3211.  Division  of  yard. 

Sec.  3211.  The  yard  is  divided  into  three  equal  parts,  called  feet,  and  each 
foot  into  twelve  equal  parts,  called  inches;  for  measures  of  cloth  and  other 
commodities  commonly  sold  by  the  yard  it  may  be  divided  into  halves,  quarters, 
eighths,  and  sixteenths. 

8212.  Bod,  mile,  and  chain. 

Sec.  3212.  The  rod,  pole,  or  perch  contains  five  and  a  half  yards,  and  the  mile 
one  thousand  seven  hundred  and  sixty  yards;  the  chain  for  measuring  land 
is  twenty-two  yards  long,  and  divided  into  one  hundred  equal  parts  called 
links. 

391 


3213-3223  POLITICAL  CODE. 

3213.  Acre. 

Sec.  3213.  The  acre  for  land  measure  must  be  measured  horizontally,  and 
contains  ten  square  chains,  and  is  equivalent  in  area  to  a  rectangle  sixteen  rods 
in  length  and  ten  in  breadth;  six  hundred  and  forty  acres  being  contained  in 
a  square  mile. 

3214.  Unit  of  weights. 

Sec.  3214.  The  standard  avoirdujiois  and  troy  weights  are  the  units  or  stand- 
ards of  weight  from  which  all  other  weights  are  dei'ived  and  ascertained. 

3215.  Division  of  pound. 

Sec  3215.  The  avoirdupois  pound,  which  bears  to  the  troy  pound  the  ratio 
of  seven  thousand  to  live  thousand  seven  hundred  and  sixty,  is  divided  into  six- 
teen equal  parts,  called  ounces;  the  hundred  weight  consists  of  one  hundred 
avoirdupois  pounds,  and  twenty  hundred  weight  constitute  a  ton.  The  troy 
ounce  is  equal  to  the  twelfth  part  of  the  troy  pound. 

3216.  Unit  of  liquid  measures. 

Sec.  3216.  The  standard  gallon  and  its  parts  are  the  units  or  standards  of 
measure  of  capacity  for  liquids,  from  which  all  other  measures  of  liquids  are 
derived  and  ascertained. 

3217.  Barrel  and  hogshead. 

Sec  3217.  The  ban-el  is  equal  to  thirty-one  and  a  half  gallons,  and  two  bar- 
rels constitute  a  hogshead. 

3218.  Unit  of  solid  measure. 

Sec  3218.  The  standard  half  bushel  is  the  unit  or  standard  measui'e  of 
cai')acity  for  substances  other  than  liquids,  from  which  all  other  measvu-es  of 
such  substances  are  derived  and  ascertained. 

3219.  Division  of  half  bushel. 

Sec.  3219.  The  peck,  half  2>eck,  quarter  peck,  quart,  and  pint  measures  for 
measuring  commodities  other  than  liquid  are  derived  from  the  half  bushel  by 
successively  dividing  that  measure  by  two. 

3220.  Division  of  capacity  for  commodities  sold  by  heap  measure. 

Sec.  3220.  The  measures  of  cai:»acity  for  coal,  ashes,  marl,  manure,  Indian 
corn  in  the  ear,  fruit,  and  roots  of  every  kind,  and  for  all  other  commodities 
commonly  sold  by  heap  measure,  are  the  half  bushel  and  its  multii^les  and 
subdivisions;  and  the  measures  used  to  measure  such  commodities  must  be 
made  cylindrical,  with  plane  and  even  bottom,  and  must  be  of  the  following 
diameters  from  outside  to  outside:  the  bushel,  nineteen  and  a  half  inches; 
half  bushel,  fifteen  and  a  halt'  inches,  and  the  peck,  twelve  and  a  third  inches. 

3221.  Tlrap  measure. 

Sec  3221.  All  commodities  sold  by  heap  measure  must  be  duly  heaped  up 
in  the  foi-m  of  a  cone;  the  outside  of  the  measure,  by  which  the  same  are  meas- 
ured, to  be  the  limit  of  the  base  of  the  cone,  and  such  cone  to  be  as  high  as  the 
article  will  admit. 

3222.  Contracts  construed  accordingly. 

Sec  3222.  Contracts  made  within  this  state  for  work  to  be  done  or  for  any- 
thing to  be  sold  or  delivered  by  weight  or  measure,  must  be  construed  according 
to  the  foregoing  standards. 

3223.  Weights  of  bushels  of  various  products. 

Sec  3223.  Whenever  wheat,  lye,  Indian  corn,  barley,  buckwheat,  or  oats  are 
sold  by  the  bushel,  and  no  special  agreement  as  to  the  weight  or  measurement  is 
made  by  the  parties,  the  bushel  consists  of  sixty  pounds  of  wheat,  of  fifty-four 
pounds  of  rye,  of  fifty-two  pounds  of  Indian  corn,  of  fifty  pounds  of  barley,  of 
forty  pounds  of  buckwheat,  and  of  thirty-two  pounds  of  oats. 

392 


GENERAL  POLICE  OF  STATE.  3233-3234 

CHAPTER  IX. 

LABOR  AND   MATEKIAL   ON  TUBLIC   BUILDINGS. 

3233.  Labor  on  public  buildings  must  be  done  by  day's  work. 

Sec.  3233.  All  work  done  ujion  the  public  buildings  of  this  state  must  be 
done  under  the  supervision  of  a  superintendent,  or  state  officer  or  officers 
having-  charge  of  the  work,  and  all  labor  employed  on  such  buildings,  whether 
skilled  or  unskilled,  must  be  emj)loyed  by  the  day,  and  no  work  upon  any  of 
such  buildings  must  be  done  by  contract. 

3234.  Material  must  be  furnished  by  contract. 

Sec.  3234.  All  materials  to  be  used  on  any  of  the  public  buildings  must  be 
furnished  by  contract,  in  accordance  with  the  plans  and  specifications  and  pro- 
posals therefor. 

Au  Act  to  regulate  the  erection  of  public  buildiugs  and  structures. 
Approved  April  1,  1872;  1871-2,  925. 

Plans  and  specifications — Advertisement. 

Section  1.  When  by  any  statute  of  this  state  power  is  given  to  any  state  or 
county  officer  or  officers,  or  to  any  board  of  supervisors  or  corporation,  or  any 
board  of  trustees  or  commissioners,  or  other  person  or  persons  created  or  ap- 
pointed by  authority  of  any  such  statute,  to  erect,  or  cause  to  be  erected  or 
constructed,  any  state  or  county  or  other  building  or  structure,  it  shall  be  the 
duty  of  said  officer  or  officers,  board  of  supervisors,  corporation,  or  board  of 
trustees,  or  commissioners,  or  other  j)erson  or  persons,  to  advertise  for  plans 
and  specifications  in  detail  for  said  building  or  other  structure,  and  to  state  in 
said  advertisement  the  amount  authorized  by  law  or  otherwise  to  be  expended 
for  the  erection  of  said  building  or  structure;  and  also  the  premium  to  be 
awarded  to  the  architect  whose  plans  and  s^^ecifications  for  the  same  may  be 
adoj)ted. 

Architect's  bond  for  contract. 

Sec.  2.  Whenever  the  plans  and  specifications  of  any  architect  shall  be 
adopted,  such  officer  or  officers,  board  of  supervisors,  or  corporation,  or  board 
of  trustees,  or  commissioners,  or  other  person  or  persons  so  adoj^ting  the  same, 
shall,  before  any  premium  shall  be  awarded  for  such  plans  and  specifications, 
require  such  architect  to  execute  and  file  with  such  officer  or  officers,  board  of 
supervisors,  corporation,  or  board  of  trustees,  or  commissioners,  or  other  per- 
son or  persons,  a  good  and  sufficient  bond,  with  two  sufficient  sureties  thereto, 
in  the  penal  sum  of  five  thousand  dollars,  to  be  approved  by  such  officer  or 
officers,  board  of  supervisors,  corjDoration,  or  board  of  trustees,  or  commis- 
sioners, or  other  person  or  persons,  as  the  case  may  be,  and  conditioned  that 
within  sixty  days  from  the  date  of  said  bond  he  will,  on  presentment  to  him, 
euter  into  a  contract  containing  such  provisions  and  conditions  as  may  be 
required  by  such  officer  or  officers,  board  of  supervisors,  corporation,  or  board 
of  trustees,  or  commissioners,  or  other  person  or  persons;  and  also  condi- 
tioned that  he  will  give  such  further  bond  to  secure  the  faithful  performance  of 
such  contract,  with  such  sureties  as  may  be  required  of  him,  in  the  event  that 
such  officer  or  officers,  board  of  supervisors,  corj)oration,  or  board  of  trustees, 
or  commissioners,  or  other  person  or  persons,  so  acting  under  authority  of  law 
should,  within  said  sixty  days,  require  said  architect  to  enter  into  such  con- 
tract to  erect  such  building  or  structure,  at  the  price  named  in  said  advertise- 
ment to  be  expended  for  such  purpose.  In  case  said  architect  whose  plans  and 
specifications  are  adopted  should  enter  into  such  contract,  it  shall  be  the  duty 
of  such   officer   or   officers,  board  of   supervisors,    corporation,   or  board   of 

393 


3234  POLITICAL  CODE. 

trustees,  or  commissioners,  or  other  person  or  persons,  to  employ  a  competent 
architect  or  superintendent  to  superintend  the  erection  of  such  building  or 
structure,  and  to  see  that  such  plans  and  specifications  are  faithfully  carried  out. 

When  contracts  void. 

Sec.  3.  All  contracts  entered  into  Ly  such  officer  or  officers,  hoard  of  super- 
visors, corporation,  board  of  trustees,  commissioners,  or  other  jDcrson  or  per- 
sons, in  violation  of  the  provisions  of  this  act,  sliall  be  null  and  void. 

Sec.  4.  This  act  shall  take  eflect  and  be  in  force  from  and  after  its  passage. 

An  Act  to  regulate  contracts  ou  behalf  of  the  state,  iu  relation  to  erections  and  buildings. 
Approved  March  23,  187G;  1872-6,  427. 

Before  contracting,  j^^cins  to  be  furnished. 

Section  1.  That  in  all  cases  where  the  commissioners,  directors,  trustees,  or 
other  officer  or  officers,  to  whom  is  confided  b^'-  law  the  duty  of  devising  and 
superintending  the  erection,  alteration,  addition  to,  or  improvement  of  any 
state  institution,  asjdum,  or  other  improvement,  erected,  or  now  being  erected, 
or  to  be  erected,  by  the  state,  such  commissioners,  directors,  trustees,  or  other 
officer  or  officers,  before  entering  into  any  contract  for  the  erection,  alteration, 
addition  to,  or  improvement  of  such  institution,  asylum,  or  other  improvement, 
or  for  the  supply  of  materials  therefor,  the  aggregate  cost  of  which  erection, 
alteration,  addition,  or  improvement,  and  materials  therefor,  exceed  the  sum  of 
three  thousand  dollars,  shall  make,  or  procure  to  be  made,  a  full,  complete, 
and  accurate  plan  or  plans  of  such  institution,  asylum,  or  other  improvement, 
or  of  an}-  addition  to,  or  alteration,  or  improvement  thereof,  in  all  its  parts, 
showing  all  the  necessary  details  of  the  work,  together  with  working  plans 
suitable  for  the  use  of  the  mechanics  or  other  builders  during  the  construction 
thereof,  so  drawn  and  represented  as  to  be  j^lain  and  easily  understood;  and, 
also,  accurate  bills,  showing  the  exact  amount  of  all  the  different  kinds  of 
materials  necessary  in  the  erection  thereof,  addition  thereto,  or  in  the  alteration 
or  improvement  thereof,  to  accompany  said  plan  or  plans;  and,  also,  full  and 
complete  specifications  of  the  work  to  be  done,  showing  the  manner  and  style 
in  which  the  same  will  be  required  to  be  done,  giving  such  directions  for  the 
same  as  will  enalile  any  competent  mechanic  or  other  builder  to  carry  them  out, 
and  afford  the  bidders  all  needful  information  to  enable  them  to  understand 
what  will  be  required  in  the  erection,  addition  to,  alteration,  or  improvement 
of  such  institution,  asylum,  or  other  improvement,  and  to  make,  or  cause  to  be 
made,  a  full,  accurate,  and  complete  estimate  of  each  item  of  expense,  and  the 
entire  aggregate  cost  of  such  institution,  asylum,  or  other  improvement,  or  of 
any  addition  to,  alteration,  or  improvement  thereof,  when  completed. 

Plans,  etc.,  to  be  approved  by  governor,  treasurer,  and  secretary  of  state. 

Sec  2.  That  such  plans,  drawings,  rei^resentations,  bills  of  materials,  and 
specifications  of  work,  and  estimates  of  the  cost  thereof,  in  detail  and  in  the 
aggregate,  as  are  required  in  the  first  section  of  this  act  to  be  made,  shall  be, 
when  made,  submitted  to  the  governor,  state  treasui-er,  and  secretary  of  state, 
for  their  approval,  and  if  approved  by  them,  a  copy  thereof  shall  be  dei)osited 
and  safely  kept  in  the  office  of  controller  of  state. 

Sealed  jtroposals,  votice  of. 

Sec.  3.  That  after  such  plans,  descriptions,  bills  of  materials,  and  specifica- 
tions, and  estimates,  as  are  in  this  act  required,  are  made  and  ajjproved,  in 
accordance  with  the  requirements  of  this  act,  it  shall  be,  and  is  hereby  made, 
the  duty  of  such  commissicniers,  directors,  trustees,  or  other  officer  or  officers, 
to  whom  the  duty  of  devising  and  superintending  the  erection,  addition  to, 
alteration,  or  improvement  of  such  institution,  asylum,  or  other  improvement, 

3U4 


GENERAL  POLICE  OF  STATE.  3234 

as  in  this  act  provided,  to  give  or  cause  to  be  given  public  notice  of  tlic  time 
and  place,  when  and  where  sealed  proposals  will  be  received  for  perfonning  the 
labor  and  furnishing  the  materials  necessaiy  to  the  erection  of  such  institution, 
asylum,  or  other  improvement,  or  for  the  adding  to,  altering,  or  improvement 
thereof,  and  a  contract  or  contracts,  based  on  such  sealed  proposals,  will  be 
made;  which  notice  shall  be  i:)ublished  weekly  for  four  consecutive  weeks  next 
preceding  the  day  named  for  the  making  of  such  contract  or  contracts,  in  the 
paper  having  the  largest  circulation  in  the  county  where  the  work  is  to  be  let, 
and  in  two  daily  papers  having  the  largest  circulation  and  published  each  in  the 
cities  of  San  Francisco  and  Sacramento,  and  shall  state  when  and  where  such 
plan  or  plans,  descriptions,  bills,  and  specitications  can  be  seen,  and  which 
shall  be  open  to  public  inspection  at  all  business  hours  between  the  date  of  such 
notice  and  the  making  of  such  contract  or  contracts. 

Bond  that  contractor  will  perform  contract. 

Sec.  4.  That  on  the  day  named  in  said  public  notice,  said  commissioners, 
directors,  trustees,  or  officer  or  officers  as  aforesaid,  shall  proceed  to  publicly 
open  said  sealed  proposals,  and  shall  award  such  contract  or  contracts  for  doing 
the  work  and  furnishing  materials  for  the  same,  to  the  lowest  bidder,  giving 
resiDonsible  bonds ;  provided,  always,  that  no  i:)roposaIs  shall  be  considered 
unless  accompanied  with  a  bond  of  said  proposer,  equal  to  ten  per  cent,  of  his 
j)roposal,  with  sufficient  sureties,  conditioned,  that  if  said  proposal  shall  be 
accepted,  the  party  jiroposiug  will  duly  enter  into  a  proper  contract,  and  faith- 
fully perform  his  or  their  contract  or  contracts,  in  accordance  with  said  proposal, 
and  the  plan  or  plans,  specifications,  and  descriptions,  Avhich  shall  be  and  are 
hereby  made  a  part  of  such  contract  or  contracts;  and  provided  further,  that 
such  contract  or  contracts  shall  not  be  binding  on  the  state  until  they  are  sub- 
mitted to  the  attorney-general,  and  by  him  found  to  be  in  accordance  with  the 
provisions  of  this  act,  and  his  certificate  thereon  to  that  effect  made;  and  j)ro- 
vided  further,  that  if  in  the  opinion  of  such  commissioners,  directors,  trustees, 
or  other  officer  or  officers,  the  acceptance  of  the  low^est  bid  or  bids  shall  not  be 
for  the  best  interests  of  the  state,  it  may  be  lawful  for  them,  wdth  the  written 
advice  and  consent  of  the  governor,  state  treasurer,  and  secretaiy  of  state,  to 
accept  such  jproposal  or  proposals  opened,  as  in  their  oj)inion  may  be  better  for 
the  interests  of  the  state,  or  reject  all  proposals  and  advertise  for  others  in  the 
manner  aforesaid.  All  contracts  shall  provide  that  such  commissioners,  direc- 
tors, trustees,  or  other  officer  or  officers  may,  as  hereinafter  provided,  and  on 
the  conditions  stated,  make  any  change  in  the  work  or  materials. 

No  change  in  plan  to  be  made  unless  ajyproved  as  original. 

Sec  5.  That  no  change  of  the  plan  or  plans,  descriptions,  bills  of  materials, 
or  specifications,  which  shall  either  increase  or  decrease  the  cost  of  said  institu- 
tion, asylum,  building,  or  improvement,  exceeding  the  sum  of  one  thousand 
dollars,  shall  be  made  or  allow^ed,  after  they  are  once  approved  and  filed  with 
the  controller  of  state  as  herein  required,  until  such  proposed  change  shall 
have  received  the  approval  of  the  governor,  state  treasurer,  and  secretaiy  of 
state;  and  when  so  approved,  the  plan  or  plans  of  such  change,  with  the  de- 
scription thereof,  and  the  specifications  of  the  work,  and  bills  of  material,  shall 
be  filed  with  the  controller  of  state  in  the  same  manner  as  required  before  such 
change  w^as  made;  and  no  allowance  whatever  shall  be  made  for  work  jier- 
formed  or  materials  furnished  under  such  change  of  i)lan  or  plans,  or  descrip- 
tions, or  specifications,  or  bills  of  materials,  unless,  before  such  labor  is 
performed  and  materials  furnished,  a  contract  or  contracts  therefor  is  made  in 
writing,  which  contract  or  contracts  shall  show  distinctly  the  nature  of  such 
change,  and  shall  be  subject  to  all  the  conditions  and  provisions  herein  imposed 

395 


3234  POLITICAL  CODE. 

xi])on  the  orig-inal  contracts,  and  be  subject  also  to  tlie  api^roval  of  the  attorney- 
general  as  hereinbefore  provided;  provided,  that  all  changes  in  the  contract 
exceeding  five  hundred  dollars,  shall  be  by  contracts  in  writing,  with  full  speci- 
fications and  estimates,  and  shall  become  a  part  of  the  original  contract,  and 
shall  be  filed  with  the  controller  of  state,  with  the  original  contract;  and  pro- 
vided further,  that  the  amount  of  such  change  in  the  contract,  plans,  descrip- 
tions, bills  of  materials,  or  specifications,  shall  not,  in  the  aggregate,  increase 
the  cost  of  construction  of  said  institution,  asylum,  building,  or  improvement, 
more  than  three  per  centum  of  the  original  contract  price  or  cost. 

Wliole  cost  not  to  exceed  amoiuit  authorized  by  laiu. 

Sec.  6.  That  no  contract  or  contracts  shall  be  made  for  the  labor  or  material 
herein  provided  for  at  a  price  in  excess  of  the  entire  estimate  thereof,  in  this 
act  required  to  be  made,  and  the  entire  contract  or  contracts  shall  not,  includ- 
ing estimates  of  expenses  for  architects  and  otherwise,  exceed  in  the  aggregate 
the  amount  authorized  by  law  for  such  institution,  asylum,  building,  or  other 
improvement,  or  such  addition  to,  or  alteration  or  improvement  thereof,  under 
the  25enalties  of  section  ten  of  this  act  hereinafter  provided. 

Directors,  etc.,  to  estimate  labor  and  materials,  and  amount  due. 

Sec  7.  At  the  time  or  times  named  in  the  contract  or  contracts  made  and 
filed  with  the  controller  of  state,  or  which  has  been  previously  made  and  filed 
with  him,  in  accordance  with  the  provisions  of  this  act,  for  payment  to  the 
person  or  persons  with  whom  such  contract  or  contracts  had  been  made,  it  shall 
be  and  is  hereby  made  the  duty  of  the  commissioners,  directors,  trustees,  or 
other  oificer  or  officers,  to  whom  is  confided  the  duty  of  superintending  the 
erection  of  such  institution,  asylum,  building,  or  imjirovement,  or  adding 
to,  altering,  or  improving  the  same,  to  make  or  cause  to  be  made  a  full, 
accurate,  and  detailed  estimate  of  the  various  kinds  of  labor  performed 
and  materials  furnished  under  such  contract  or  contracts,  with  the  amount 
due  for  each  kind  of  labor  and  materials,  and  the  amount  due  in  the 
aggregate,  which  estimate  shall  be  based  upon  an  actual  measurement  of  the 
labor  so  performed  and  materials  so  furnished,  which  estimate  shall,  in  all  cases, 
give  the  amounts  of  the  jn-eceding  estimate  or  estimates,  and  the  amount  of 
labor  performed  and  materials  furnished  since  the  last  estimate,  which  estimate 
or  estimates  so  made,  as  in  this  act  required,  shall  be  recorded  in  a  book  for 
that  purpose  to  be  provided  and  kept,  or  caused  to  be  kept,  by  the  said  com- 
missioners, directors,  trustees,  or  other  officer  or  officers,  and  a  certified  copy 
thereof,  addressed  to  the  controller  of  state  by  the  said  commissioners,  direc- 
tors, trustees,  or  other  officer  or  officers,  or  by  such  person  as  they  may 
designate  for  that  purpose,  be  delivered  to  the  contractor  or  contractors  entitled 
thereto;  provided  that  upon  all  estimates  of  materials  furnished  and  delivered, 
and  not  actually  having  entered  into  and  become  a  part  of  said  institu- 
tion, building,  or  other  improvement,  there  shall  not  be  paid,  until  the  same 
shall  be  incorporated  into  and  become  a  part  of  said  institution,  building,  or 
other  improvement,  exceeding  fifty  per  centum  of  such  estimated  value. 
Controller  to  compare  estimate  with  contract. 

Sec.  8.  It  sliall  be  the  duty  of  the  controller  of  state,  on  the  receipt  of  such 
estimate  so  certified  and  ai)i)roved,  to  compare  carefully  i\\e  same  with  the  con- 
tract or  contracts  under  which  labor  was  done  or  materials  furnished,  and  if 
there  had  been  any  previous  estimates,  then  with  such  estimates;  and  if,  upon 
such  comparison,  he  shall  find  such  last-named  estimate  in  all  respects  cor- 
rect, he  shall  number  the  same,  place  it  on  file,  and  have  a  record  thereof 
made,  and  give  to  the  jjcrson  or  persons  entitled  thereto,  taking  his  or  their 
receipt  therefor,  a  warrant  on  the  treasurer  of  state  for  the  amount  shown 

39G 


GENERAL  POLICE  OF  STATE.  323^ 

by  sncb  estimate  or  estimates  to  be  due,  less  the  amount  of  ten  per  centum 
thereon,  which  shall  be  retained  as  an  additional  security  for  the  faithful  per- 
foiTnance  of  his  or  their  contract  or  contracts,  and  shall  be  forfeited  to  the  state 
in  the  event  of  a  failure  of  such  contractor  or  contractors  to  conform  in  good 
faith  to  the  terms  and  conditions  of  such  contract  or  contracts;  but  when  the 
labor  to  be  performed  and  materials  furnished,  \inder  such  contract  or  contracts, 
is  performed  and  furnished,  and  a  final  estimate  thereof  made,  the  controller  of 
state  shall  include  in  the  warrant  or  warrants  for  the  amount  of  such  last  esti- 
mate the  percentage  retained  on  former  estimates. 

Sec.  9.  The  treasurer  of  state  shall  pay  the  wai-rants  issued  by  the  controller 
of  state,  under  and  by  virtue  of  the  provisions  of  this  act,  placing  the  same  on 
file,  and  keeping  a  register  of  the  names  of  the  person  or  persons  to  whom  such 
warrants  are  paid. 

Officer  making  fraudulent  plavs  or  estimates. 

Sec.  10.  Any  commissioner,  director,  trustee,  or  other  officer  or  person  other- 
wise api^ointed,  whose  duty  it  is  to  superintend,  in  whole  or  in  part,  the  erec- 
tion of  such  institution,  asylum,  building,  or  imj)rovement,  or  of  adding  to, 
altering,  or  the  improvement  thereof,  or  the  making  of  the  plans,  descriptions, 
and  specifications  of  the  labor  to  be  performed  and  materials  to  be  furnished, 
as  j)ro\ided  in  this  act,  and  the  estimates  of  the  cost  thereof,  or  the  estimates 
of  the  amount  of  labor  done  and  materials  furnished  from  time  to  time,  under 
and  in  accordance  with  the  terms  and  conditions  of  the  contracts  in  this  act 
authorized  to  be  made,  and  the  provisions  of  this  act,  who  shall,  in  the  per- 
formance of  the  duty  herein  imposed  upon  him  or  upon  them,  knowingly  make 
incomj^lete  or  fraudulent  plans,  drawings,  bills  of  materials,  specifications  of 
work,  or  estimates  of  the  cost  thereof,  or  permit  the  work  in  any  other  manner 
than  is  prescribed  in  such  plans,  descrij^tions,  and  specifications,  or  with  mate- 
rials inferior  to  that  required  by  such  bills  of  materials,  to  the  injury  of  the 
state;  or  shall  knowingly  make  false  estimates  of  the  labor  done  or  materials 
furnished,  either  in  the  quantity  or  price  thereof,  to  the  injury  of  the  state;  or 
any  contractor,  or  any  agent  of  any  contractor  or  contractors,  who  shall  know- 
ingly permit  materials  to  be  used  or  work  to  be  done  inferior  to,  or  in  violation 
of,  the  contract  of  such  contractor  or  contractors,  to  the  injury  of  the  state, 
shall  be  deemed  and  held  guilty  of  a  felony,  and,  upon  conviction  thereof,  shall 
be  confined  in  the  state  prison  for  not  less  than  one  year  nor  more  than  five 
years,  and  be  liable  to  the  state  for  double  the  amount  the  state  may  have  lost, 
or  be  liable  to  lose,  by  reason  thereof. 

Attorney-general  to  enforce  contracts. 

Sec.  11.  It  shall  be  the  duty  of  the  attorney-general  to  have  charge  of  and 
direct  all  the  jDroceedings  necessary  to  enforce  the  contracts  authorized  by  this 
act  and  the  provisions  of  this  act,  against  such  person  or  persons  as  become 
liable  to  the  penalties  herein  prescribed. 

Officers  to  require  diligence  in  contractor. 

Sec  12.  "Whenever,  in  the  opinion  of  the  commissioners,  directors,  trustees, 
or  other  officers  charged  with  the  duty  of  devising  and  superintending  the  erec- 
tion, alteration,  addition  to,  or  improvement  of  any  state  institution,  asylum, 
building,  or  other  improvement  under  this  act,  or  any  law  of  this  stale,  the 
work  under  any  contract  made  in  pursuance  of  this  act,  or  any  such  law,  is 
neglected  by  the  contractor  or  contractors,  or  that  the  same  is  not  j^rosecuted 
with  the  diligence  and  force  specified,  meant,  or  intended  in  and  by  the  terms 
of  the  contract,  it  shall  be  lawful  for  such  commissioners,  directors,  tnistees,  or 
other  officers,  to  make  a  requisition  upon  such  contractor  or  contractors  for  such 
additional  specific  force,  or  for  such  additional  specific  materials,  to  be  brought 

397 


3234-3245  POLITICAL  CODE. 

into  the  work  under  such  contract,  or  to  remove  improper  materials  from  the 
grounds,  as  in  the  judgment  of  such  commissioners,  directors,  trustees,  or  other 
officers,  said  contract  and  its  due  and  faithful  fulfillment  require;  of  which  ac- 
tion of  said  board  or  other  officers,  due  notice  in  writing,  of  not  less  than  five 
days,  shall  be  served  upon  such  contractor,  or  his  or  their  agent  having  charge 
of  the  work.  And  if  such  contractor  or  contractors  fail  to  comply  with  such 
requisition  within  fifteen  days,  it  shall  be  lawful  for  said  commissioners,  direc- 
tors, trustees,  or  other  officers,  with  the  consent,  in  Avriting,  of  the  governor, 
treasurer  of  state,  and  secretary  of  state,  to  employ  upon  such  work  the  addi- 
tional force,  or  supply  the  materials  so  specifically  required  as  aforesaid,  or 
such  part  of  either,  as  they  may  deem  proper,  and  to  remove  i}uproj)er  materi- 
als fn)m  the  grounds;  and  it  shall  be  the  duty  of  such  commissioners,  direc- 
tors, trustees,  or  other  officers,  to  make  separate  estimates  of  all  such  additional 
force  or  materials  so  employed  or  supplied  as  aforesaid,  and  which,  being 
certified  to  by  said  commissioners,  directors,  trustees,  or  other  officers,  shall  be 
paid  by  the  controller  of  state  the  same  as  if  made  out  agreeably  to  section 
seven  of  this  act,  and  the  amount  so  paid  shall  be  charged  against  said  con- 
tractor or  contractors,  and  deducted  from  his  or  their  next,  or  any  subsequent 
estimate;  or  the  same,  or  any  part  thereof,  not  paid  as  aforesaid,  may  be  recov- 
ered by  action  from  such  contractor  or  contractors,  and  their  sui^eties. 
Time  to  be  fixed  for  completion  of  contract. 

Sec.  13.  In  all  contracts  made  under  the  provisions  of  this  act,  there  shall  be 
a  provision  in  regard  to  the  time  when  the  whole,  or  any  specified  portion,  of 
the  work  contemplated  in  said  contract  shall  be  completed,  and  also  providing 
that  for  each  and  every  day  the  same  shall  be  delayed  beyond  such  time  or  times 
so  named,  the  said  contractor  or  contractors  shall  forfeit  and  pay  to  the  state  a 
sum  of  money,  to  be  fixed  and  determined  in  said  contract,  to  be  deducted  from 
any  payment  or  payments  due,  or  to  become  due,  to  said  contractor  or  con- 
tractors. 
Applicable  to  former  contracts. 

Sec  14.  All  contracts  now  made  and  not  performed,  for  the  erection,  altera- 
tion, addition  to,  or  improvement  of,  any  state  institution,  asylum,  building,  or 
other  improvement,  shall,  as  far  as  practicable,  be  performed,  completed  and  en- 
forced and  settled  for  under  this  act,  or  may,  by  the  consent  of  the  contracting 
parties,  be  made  to  conform  to,  and  proceed  under,  the  provisions  of  this  act. 

Sec.  15.  All  acts  and  parts  of  acts  in  conflict  with  the  provisions  of  this  act 
are  herebj'^  repealed. 

Sec.  1G.  This  act  shall  take  effect  from  and  after  its  passage. 

CHAPTER  X. 

HOURS   OF   LABOR. 

3244.  ElgJit  hour!<  a  day's  work. 

Skc.  3244.  Eight  hours  of  labor  constitute  a  day's  work,  unless  it  is  other- 
wise expressly  stipulated  by  the  parties  to  a  contract. 

3245.  Same,  on  public  works. 

Sec.  3245.  Eight  hours'  labor  constitute  a  legal  day's  work  in  all  cases  M'here 
the  same  is  performed  under  the  authority  of  any  law  of  this  state,  or  under 
the  direction,  control,  or  by  the  authority  of  any  officer  of  this  state  acting  in 
his  official  capacity,  or  under  the  direction,  control,  or  by  the  authority,  of  any 
municipal  coii^oration  within  this  state,  or  of  any  officer  thereof  acting  as  such; 
and  a  stipulation  to  that  eff'ect  must  be  made  a  part  of  all  contracts  to  which 
the  state  or  any  municipal  corporation  therein  is  a  party. 

*   398 


GENEKAL  POLICE  OF  STATE.  3255-3284 

CHAPTER  XI. 

TIME. 

3255.  Time,  how  computed. 

Skc.  3255.  Time  is  computed  according'  to  the  Gregorian  or  new  style;  and 
the  first  day  of  January  in  every  year  passed  since  seventeen  hundred  and  fifty- 
two,  or  to  come,  must  be  reckoned  as  the  first  day  of  the  year. 

3256.  Leap  year. 

Sec.  3250.  The  several  years  one  thousand  nine  hundred,  two  thousand  one 
hundred,  tAvo  thoiisand  two  hundred,  two  thousand  three  hundred,  or  any  other 
future  hundredth  year,  of  which  the  year  two  thousand  is  the  first,  except  only 
every  fourth  hundredth  year,  are  not  leaj)  years,  but  common  years  of  three 
hundred  and  sixtj^-five  days;  and  the  years  two^thousand,  two  thousand  four 
hundred,  two  thousand  eight  hundred,  and  every  other  fourth  hundredth  year 
from  the  year  two  thousand,  inclusive,  and  also  every  fourth  year,  excejit  as 
above  mentioned,  which,  by  usage,  in  this  state  is  considered  a  leap  year,  is  a 
leap  year  consisting  of  three  hundred  and  sixty-six  days. 

3257.  Year  and  its  parts. 

Sec.  3257.  The  term  "year"  means  a  period  of  three  hundred  and  sixty-five 
days;  a  half  year,  one  hundred  and  eighty-two  days;  a  quarter  of  a  year,  ninety- 
one  days,  and  the  added  day  of  a  leap  year,  and  the  day  immediately  pi'eced- 
ing,  if  they  occur  in  any  such  period,  must  be  reckoned  together  as  one  day. 

3253.    Week. 

Sec  3258.  A  week  consists  of  seven  consecutive  days. 

3259.  Bay. 

Sec.  3259.  A  day  is  the  period  of  time  between  any  midnight  and  the  mid- 
night following. 

3260.  " Day-time"  and  "Night-time"  defined. 

Sec  3260.  "  Day-time  "  is  the  period  of  time  between  "  sunrise"  and  "  sun- 
set," and  "  night-time"  is  the  period  of  time  between  "  sunset"  and  "  sunrise." 

CHAPTER  XII. 

MONEY   OP   ACCOUNT. 

3272.  Money  of  account. 

Sec  3272.  The  money  of  account  of  this  state  is  the  dollar,  cent,  and  mill. 
Public  accounts  and  all  pi'oceedings  in  courts  must  be  kept  and  had  in  con- 
formity to  this  regulation. 

3273.  Limitation  on  preceding  section. 

Sec  3273.  The  provisions  of  the  preceding  section  do  not  vitiate  or  affect  any 
account,  charge,  or  entry  originally  made,  or  any  note,  bond,  or  other  instru- 
ment expressed  in  any  other  money  of  account;  but  the  same  must  be  reduced 
to  dollars,  or  parts  of  dollars,  in  any  suit  thereupon. 

3274.  Amount,  how  stated  in  judgments,  etc. 

Sec  3274.  In  judgments  and  executions  the  amount  thereof  must  be  com- 
puted and  stated  as  near  as  may  be  in  dollars  and  cents,  rejecting  fractions. 

CHAPTER  XIII. 

AUCTIONS. 

Article  I.  Auctioneees    3284 

II.  Regulations  eespectino  Sales 3302 

III.  Frauds  and  Penalties 3322 

ARTICLE  I. 

auctioneeks. 
3284.    Who  may  become  auctioneers,  and  how. 

Sec  3284.  Any  citizen  of  this  state  may  become  an  auctioneer  for  the  county 

399 


3284-3292  POLITICAL  CODE. 

in  which  he  resides,  and  is  authorized  to  sell  real  and  personal  property  at 
public  auction,  on  j^iviuL,'  a  bond  in  accordance  with  the  provisions  of  this 
article  for  the  faithful  performance  of  his  duties,  and  on  the  payment  of  the 
license  therefor. 

3285.  Jioiul,  SHretit\<,  approval,  and  JiUng. 

Skc.  328').  The  bond  must  be  conditioned  to  be  paid  to  the  peoi)le  of  the 
State  of  California,  with  one  or  more  sureties,  in  the  sum  of  five  thousand  dol- 
lars, and  approved  bv  the  county  judge  of  the  county  iu  which  the  auctioneer 
proposes  to  do  business,  and  must  be  filed  iu  the  office  of  the  county  clerk  of 
the  county. 

3286.  GovernmeiU  goods  are  exempt. 

Sec.  3280.  No  auctioneer's  tcense  is  required  for  the  selling  of  any  goods  at 
public  sale  belonging  to  the  United  States,  or  to  this  state,  or  for  the  sale  of 
property  by  virtue  of  any  jjrocess  issued  by  any  state  or  federal  court. 

3287.  Original  appiication,  hoio  classified. 

Si-c.  3287.  Even-  original  apjilication  for  auctioneer's  license  must  be  accom- 
panied with  a  verified  statement  of  the  amount  of  sales  proposed  to  be  made 
umnthlv,  and  the  license  charge  must  be  for  the  first  quarter  classified  thereby. 

3288.  Reiu'ival  of  license. 

Sec.  3288.  Everj''  auctioneer  applying  to  the  tax  collector  for  a  renewal  of  his 
license  must  accompany  the  ai^plication  Avith  a  statement,  under  oath,  setting 
forth  that  his  average  receipts  jier  month  on  account  of  sales  during  the  pre- 
ceding quarter  did  not  exceed  the  amount  specified  in  the  class  of  license  for 
which  he  applies.  The  tax  collector  must  provide  blank  forms  of  affidavit  for 
that  puiiwse,  and  administer  the  oath  required  to  such  applicants  without 
charge. 

3289.  Ji>'neu'al,  for  how  long — Exceeding  class  by  sales. 

Sec  3289.  After  the  first  quarter  licenses  may  be  issued  for  the  class  fixed 
for  a  term  not  exceeding  one  year,  at  the  option  of  the  auctioneer.  No  auc- 
tioneer must  exceed  the  amount  of  sales  of  the  class  in  which  his  license  is  fixed. 
For  every  violation  of  this  section,  in  addition  to  the  criminal  penalty,  the 
auctioneer  forfeits  two  hundred  and  fifty  dollars. 

3290.  Xot  (o  transfer  license. 

Sec  3290.  No  auctioneer  is  permitted  to  transfer  his  license  to  any  other 
person  for  any  jjaii  of  the  time  for  which  his  license  is  issued ;    nor  is  any 
auctioneer  permitted  to  use  his  license  for  the  purpose  of  transacting  an  auction 
business  in  more  than  one  store  or  specified  place  of  business. 
8291.    Auflionrers  ex  officio. 

Sec.  3291 .  Iu  any  city  or  town  where  there  is  no  auctioneer,  the  sheriff  or  a 
coiiKtable  tliereof  is  ex  officio  auctioneer,  and  is  permitted  to  sell  any  proi:>erty, 
real  or  pernonal,  at  public  auction;  and  for  any  delinquency  as  such  ex  officio 
auctioneer  he  is  liable  on  his  official  bond. 

3292.  SuhHlittitr,  vlio  may  br,  and  ivhen. 

Sic.  3292.  P.very  auctioneer  in  case  of  inability  to  attend  an  auction  by  reason 
of  BickncKH,  or  the  performance  of  any  duty  imposed  upon  him  by  law,  or  dur- 
ing a  temjiorary  absence  from  the  city  or  county  within  which  he  is  auctioneer, 
may  enq.loy  a  co])rirtner  or  clerk  to  hold  such  auction  in  his  name  and  behalf; 
such  employee  to  take  and  file  with  the  clerk  of  the  county  an  affidavit  faith- 
fully to  perform  the  duties  of  auctioneer.  But  any  auctioneer  may  employ  a 
crier  at  any  Bale,  for  whose  acts  he  shall  be  responsible.  [Amendment,  approved 
March 'M,  1871;  J me/icZmcn/x  1873-4,  130;  took  effixt  from  passage. ^"^ 

(a)  Theorlglusl  section  did  not  have  the  last  eentenoe. 

400 


GENERAL  POLICE  OF  STATE.  3302-3309 

ARTICLE  II. 

EEGULATIONS   KESPECTING    SALES. 

8302.  Auctioneey's  in  cities  to  designate  their  places  of  business. 

Sec.  3302.  No  auctioneer  in  any  city  of  this  state  must  have  at  one  time  more 
than  one  place  for  holding  auction;  and  every  such  auctioneer,  before  acting 
as  such,  must  file  with  the  clerk  of  the  county  in  which  such  city  is  situated  a 
writing  signed  by  him  designating  such  place,  and  naming  therein  the  partners, 
if  any,  engaged  with  him  in  business. 

3303.  To  sell  at  no  other  place. 

Sec.  3303.  No  auctioneer  must  expose  to  sale  any  articles  at  any  other  place 
than  that  so  designated,  excej^t  goods  sold  in  original  packages  as  imported, 
household  furniture,  and  such  bulky  articles  as  have  usually  been  sold  in  ware- 
houses, or  in  the  public  streets,  or  on  the  wharves. 

3304.  Power  of  city  authorities. 

Sec.  3304.  The  common  council  or  other  corresponding  authority  of  each 
city  may  designate  such  place  or  jDlaces  therein  for  the  sale  by  auction  of  horses, 
carriages,  and  household  furniture,  as  they  deem  expedient. 

3305.  Book  for  live  stock. 

Sec.  3305.  Every  auctioneer  who  sells  any  animal  of  the  horse  kind,  or  any 
mules,  must  keep  a  book,  in  which  he  must  register  the  name  of  each  and  eveiy 
person  bringing  or  offering  any  horse  or  mule  to  be  sold,  and  the  name  of  the 
j)erson  purchasing  such  horse  or  mule,  together  with  the  date  of  such  sale,  and 
a  description  of  each  horse  or  mule  sold,  together  with  the  marks  and  brands. 
The  book  is  a  public  record,  subject  to  the  inspection  of  any  person  desiring  to 
insj)ect  the  same. 

3306.  Other  books. 

Sec  3306.  Each  auctioneer  must  keep  a  book,  in  which  he  must  enter  all  sales, 
showing  the  name  of  the  owner  of  the  goods  sold,  to  whom  sold,  and  the 
amount  paid,  and  the  date  of  each  sale,  which  book  must  at  all  times  be  open 
for  the  inspection  of  any  person  interested  therein. 

3307.  Advertisement  of  auction  sales  in  San  Francisco. 

Sec  3307.  Every  auctioneer  in  the  city  of  San  Francisco  must,  under  his 
own  name,  give  previous  notice  in  one  or  more  of  the  public  newspapers  printed 
in  that  city  of  every  auction  sale  made  by  him;  and  in  case  he  is  connected 
with  any  joerson  or  firm,  his  name  must  in  all  cases  precede,  separately  and 
individually,  the  name  of  such  j)erson  or  the  title  of  the  firm. 

3308.  Evening  sales  in  San  Francisco  and  Sacramento. 

Sec  3308.  All  sales  of  goods  by  public  auction  in  the  cities  of  San  Francisco 
and  Sacramento  must  be  made  in  the  daytime,  between  sunrise  and  sunset, 
excepting : 

1.  Books,  prints,  or  paintings; 

2.  Goods  sold  in  the  original  package  as  imported,  according  to  a  printed 
catalogue,  of  which  samples  must  have  been  opened  and  exposed  to  public 
inspection  at  least  one  day  previous  to  the  sale. 

3309.  Commissions,  and  penalty  for  over  charge. 

Sec  3309.  No  auctioneer  must  demand  or  receive  a  higher  compensation  for 
his  services  than  a  commission  of  one  jjcr  cent,  on  the  amount  of  any  sales, 
public  or  private,  made  by  him,  unless  by  virtue  of  a  previous  agreement  in 
writing  between  him  and  the  owner  or  consignee.  Eveiy  auctioneer  who 
violates  this  section,  in  addition  to  the  criminal  penalty,  forfeits  to  the  party 
aggrieved  two  hundred  and  fifty  dollars,  and  must  refund  the  excess  of  charge. 
26  401 


3310-3337  POLITIC.iL  CODE. 

3310.   (jaarterhj  report  of  sales. 

Sec.  3310.  Every  auctioneer  must  quarterly  make  to  the  county  auditor  a 
report,  under  oath,  showing: 

1.  The  aggregate  amount  of  auction  sales  made  by  him  for  the  preceding 
quarter,  designating  the  months  and  the  amount  for  each  month; 

2.  Tlie  davs  of  each  month  on  Avhich  auction  sales  were  made,  and  the  char- 
acter of  property  sold  by  him  during  each  month; 

3.  The  amount  of  all  private  sales  made,  and  the  day  on  which  they  were 
made ; 

4.  A  statement  of  any  partner,  clerk,  or  other  emi)loyee  connected  with  him 
in  his  business,  and  what  sales,  if  any,  have  been  conducted  by  them,  and  why; 
and 

5.  The  particular  place  where  his  business  is  conducted. 

AKTICLE  III. 

FRAUDS    AND    PENALTIES. 

3322.  Penally  for  not  reporting,  or  reporting  falsely. 

Sec  3322.  For  every  false  report  made,  and  for  every  neglect  to  make  the 
report  required  in  the  preceding  article,  the  auctioneer  thereby  forfeits  the 
sum  of  two  luinili-ed  and  fifty  dollars,  to  be  recovered  on  his  bond, 

3323.  Penalties,  how  recovered,  and  for  what. 

Sec  3323.  The  penalties  imposed  by  the  provisions  of  this  chapter,  not  other- 
wise appropriated,  must  be  prosecuted  for  by  the  district  attorney  of  the  pro^jer 
county,  the  moneys  recovered  to  be  paid  to  the  county  treasurer  for  the  use  of 
the  general  fund  of  the  county. 

3324.  Action  on  bond. 

Sec,  3324.  Any  one  aggrieved  or  damaged  by  any  act  of  an  auctioneer  in 
■violation  of  or  contrary  to  the  jn-ovisions  of  this  chaj^ter,  has  an  action  against 
him  and  his  boudsmeu  on  his  official  bond  therefor. 


CHAPTER  XIV. 

FIRES   AND   FIREMEN. 

3335.  Pire  companies,  hoiv  organized. 

Sec  333.^.  Fire  companies  in  incorporated  cities  and  towns  are  formed  and 
organized  under  special  laws,  or  under  authority  conferred  upon  the  city  or 
town  government.  Those  in  unincorporated  towns  and  villages  are  organized 
by  fib'ng  with  the  recorder  of  the  county  in  wliich  they  are  located  a  certificate 
in  writing,  signed  by  tlie  foreman  or  presiding  officer  and  secretary,  setting 
forth  tlie  date  of  the  organization,  name,  officers,  and  roll  of  active  and  honor- 
ary members,  which  certificate  and  filing  must  be  renewed  exerj  six  months. 

3336.  To  elect  officers  and  adopt  and  enforce  by-laws. 

Sec.  3336.  Every  such  fire  company  must  choose  or  elect  a  foreman,  who  is 
the  presiding  officer,  and  a  secretary  and  treasurer,  and  may  establish  and  adoi)t 
by-laws  and  regulations,  and  impose  penalties,  not  exceeding  five  dollars  or 
expulsion  for  each  offense. 

3337.  Firemen  exempt  from  m  Hilary  and  jury  duly. 

Si;c.  3337.  Tlie  officers  and  members  of  unpaid  fire  companies  regularly 
organized  and  exempt  firemen  are  not  subject  to  military  duty,  except  in  case 
of  war,  invasion,  or  insurrection,  nor  are  they  subject  to  perform  juiy  duty. 

402 


GENERAL  POLICE  OF  STATE.  3338-3344 

8338.  Exempt  certificate,  by  and  to  whom  issued. 

Sec.  3338.  Every  fireman  who  has  served  five  years  in  an  organized  fire  com- 
pany in  this  state  is  an  "  exemjit  fireman,"  and  must  receive  from  the  chief 
engineer  of  the  department  to  which  he  belonged  a  certificate  to  that  effect. 
Every  active  fireman  must  have  a  certificate  of  that  fact  signed  by  the  chief  of 
the  fire  department  or  the  foreman  of  the  company  to  which  he  belongs;  such 
certificates  must  be  countersigned  by  the  secretary,  and  over  the  seal  of  the 
company,  if  one  is  provided.  Either  certificate  entitles  the  holder  to  exemption 
from  military  and  jury  duty. 

3339.  County  clerk  may  issue  exempt  certificates,  when. 

Sec.  3339.  In  lieu  of  issuing  certificates  to  exempt  firemen  by  the  chief  of  the 
fire  department,  as  provided  in  the  last  section,  on  the  certificate  of  the  fore- 
man and  secretary  of  any  fire  comj^any,  or  the  chief  of  the  department,  pro- 
visions being  made  therefor  in  the  by-laws  of  the  company,  "exempt  certifi- 
cates ' '  ma}'  be  issued  by  the  clerk  of  the  county  over  his  official  seal  and  sig- 
nature, which  entitles  the  holder  to  like  exemption  from  military  and  jur^'duty. 

3340.  Seal  of  department,  who  to  use  and  keep. 

Sec.  3340.  Every  fire  department  regularly  organized  may  adopt  a  department 
seal,  having  upon  it  the  arms  of  the  state,  and  the  name  of  the  particular  fire 
department  to  which  it  belongs,  which  must  be  under  the  control  of  and  for 
the  use  of  the  secretary,  and  be  by  him  afiixed  to  exempt  certificates,  certificates 
of  active  membership,  and  such  other  documents  as  the  by-laws  may  provide. 
The  secretary  of  every  dej^artment  having  a  seal  must  take  the  constitutional 
oath  of  office  and  give  such  bond  as  the  by-laws  provide  for  the  faithful 
performance  of  his  duties. 

3341.  Record  of  membership  of  fire  department. 

Sec.  3341.  The  secretary  of  the  fire  department,  or  fire  company,  must  keep 
a  record  of  all  certificates  of  exemption  or  active  membership,  the  date  thereof, 
and  to  whom  issued;  and  when  no  seal  is  provided,  similar  entries  of  certifi- 
cates issued  to  obtain  county  clerk's  certificates.  Every  such  certificate  is 
prima  facie  evidence  of  the  facts  therein  stated.  [Amendment,  approved  March 
30,  1874;  Amendments  1873-4,  43;  took  efi'ect  July  6,  1874;  437.  ^*' 

3342.  Duties  of  chief  of  fire  department. 

Sec  3342.  The  chief  of  every  fire  department  must  inquire  into  the  cause  of 
every  fire  occurring  in  the  city  or  town  of  wdiich  he  is  the  chief,  and  keep  a 
record  thereof ;  he  must  aid  in  the  enforcement  of  all  fire  ordinances  duly 
enacted,  examine  buildings  in  process  of  erection,  rej^ort  violations  of  ordi- 
nances relating  to  prevention  or  extinguishment  of  fires,  and  when  directed  by 
the  proper  authorities  institute  prosecutions  therefor,  and  j^erform  such  other 
duties  as  may  be  by  proper  authority  imposed  upon  him.  His  compensation 
must  be  fixed  and  paid  by  the  city  or  town  authorities. 

3343.  Chief  to  attend  fires  and  preserve  py-operty. 

Sec  3343.  Every  chief  of  a  fire  department  must  attend  all  fires  with  his 
badge  of  office  conspicuously  displayed,  must  prevent  injury  to,  take  charge  of, 
and  preserve  all  property  rescued  from  fires,  and  return  the  same  to  the  owner 
thereof  on  the  payment  of  the  expenses  incurred  in  saving  and  keeping  the 
same,  the  amount  thereof,  when  not  agreed  to,  to  be  fixed  by  the  police  or 
county  judge. 

3344.  Setting  ivoods  on  fire. 

Sec  3344.  Every  person  negligently  setting  fire  to  his  own  woods,  or  negli- 
gently suffering  any  fire  to  extend  beyond  his  own  land,  is  liable  in  treble 
damages  to  the  party  injured. 

(o)  The  original  section  had  the  word  "  primary  "  insteiid  of  "  prima  facie." 

403 


3315-33C0  POLITICAL  CODE. 

3345.   Krli)igui.<hiiigjire  in  icoods. 

Seo.  3345.  Wheuever  the  woods  are  on  fire  any  justice  of  the  peace,  eon- 
stable,  or  road  overseer  of  the  township  or  district  where  the  fire  exists,  may 
oilier  as  many  of  the  inhabitants  liable  to  road  poll  tax,  residing  in  the  vicinity, 
as  may  be  deemed  necessary,  to  repair  to  the  place  of  the  lire  and  assist  in 
extinguishing  or  stopping  it. 

CHAPTER    XV. 

LICENSES. 

Abticle  I.  Gkskral  Provisions 3356 

II.  Classikic.\tion  and  Taxkb 3376 

ARTICLE  I. 

GENERAL    PROVISIONS, 

3356.  Licenses  to  he  prepared  and  printed. 

Sec.  3356.  Each  county  auditor  must  prepare  and  have  printed  blank  licenses 
of  all  classes  mentioned  in  this  chapter  for  terms  of  three,  six,  and  twelve 
months,  and  for  such  shorter  terms  as  are  herein  authorized  to  be  issued,  with 
a  blank  receipt  attached  for  the  signature  of  the  tax  collector  when  sold. 

3357.  Auditor  to  number,  sign,  and  deliver. 

Sec.  3357.  The  county  auditor  must  affix  his  official  seal  to,  number,  and 
sign  all  licenses,  and  from  time  to  time  deliver  them  to  the  tax  collector  in  such 
quantity  as  may  be  required,  taking  his  receipt  therefor,  and  charge  him  there- 
with, giving  in  the  entry  the  numbers,  classes,  and  amount  thereof. 

3358.  Auditor  to  keep  stumps  and  license  account. 

Si.« .  3358.  The  auditor  must  keep  in  his  office  the  stumps  of  all  licenses  by 
liini  delivered  to  the  tax  collector,  and  a  ledger  in  which  he  must  keep  the  col- 
lector's account  for  all  licenses  delivered  to  him,  sold,  or  returned  unsold  by 
him.  A  correct  statement  of  the  collector's  license  account  must  be  certified 
t(i  the  county  treasurer  each  month  by  the  auditor. 

3359.  When  license  to  be  produced. 

Sec.  3359.  A  license  must  be  procured  immediately  before  the  commence- 
ment of  any  business  or  occupation  liable  to  a  license  tax  from  the  tax  collector 
of  the  county  where  the  applicant  desires  to  transact  the  same,  which  license 
HutliorizeB  the  party  obtaining  the  same  in  his  town,  city,  or  particular  locality 
in  the  county  to  transact  the  business  described  in  such  license;  separate 
licenses  must  be  obtained  for  each  branch  establishment  or  separate  house  of 
business  located  in  the  same  county.  No  license  issued  under  this  chapter 
antiiorizes  any  person  to  cany  on  any  business  within  the  limits  of  any  incor- 
porated city  or  town  having  power  by  its  charter  to  impose  or  levy  city  or  town 
license  taxew,  unless  such  person,  in  addition  to  the  license  provided  by  this 
c'hapter,  also  jjrocures  tbe  license  recpiired  by  the  ordinances  or  orders  of  such 
city  or  town. 

3360.  Suit  against  drlijupmU — Damages. 

Sr.c.  33(10.  Against  any  person  re(piired  to  take  out  a  license  who  fails,  neg- 
lects, or  refuses  t<»  take  out  such  license,  or  who  carries  on  or  attempts  to  cany 
on  business  without  such  license,  the  collector  may  direct  suit  in  the  name  of 
the  peojde  of  the  State  of  California  as  plaintiff,  to  be  brought  for  the  recovery 
of  the  license  tax;  and  in  sucli  case  either  the  collector  or  attorney  may  make 
the  necessaiy  affidavit  fur  and  a  writ  of  attachment  may  issue  without  any 
bonds  being  given  on  behalf  of  the  plaintili";  and  in  case  of  a  recovery  by  the 

404 


GENERAL  POLICE  OF  STATE.  3360-3376 

plaintiflf,  fifteen  dollars  damages  must  be  added  to  the  judgment  and  costs  to 
be  collected  from  the  defendant,  and  wlien  collected  five  dollars  thereof  must 
be  paid  to  the  collector,  and  ten  dollars  to  the  attorney  prosecuting  the  suit. 

3361.  Tax  colleclors — Duties. 

Sec.  3361.  Each  tax  collector  must  make  diligent  inquiry  as  to  all  i)ersons  in 
his  county  liable  to  pay  license  as  provided  in  this  chapter,  and  nmst  require 
each  person  to  state,  under  oath  or  affirmation,  the  probable  amount  of  business 
which  he  or  the  firm  of  which  he  is  a  member,  or  for  which  he  is  an  agent  or 
attorney,  or  the  association  or  corporation  of  which  he  is  president,  secretaiy  or 
managing  agent,  will  do  in  the  next  succeeding  three  months;  and  thereupon, 
such  person,  agent,  president,  secretaiy  or  other  oificer,  must  procure  a  license 
from  the  tax  collector  for  the  term  desired,  and  the  class  for  which  such  party 
is  liable  to  pay;  and  in  all  cases  where  an  underestimate  has  been  made  by  the 
party  applying,  the  j^arty  making  such  underestimate,  or  the  company  he  rep- 
resented, are  required  to  pay  for  a  license  for  the  next  quarter  double  the  sum 
otherwise  rec^uired. 

3362.  Proof  on  trials. 

Sec.  3362.  Upon  the  trial  of  any  action  authoi-ized  by  this  chapter,  the  defend- 
ant is  deemed  not  to  have  procured  the  proper  license  unless  he  either  produces 
it  or  j)roves  that  he  did  procure  it;  but  he  may  plead  in  bar  of  the  action  a 
recovery  against  him  and  the  paj^ment  by  him  in  a  civil  action  of  the  proj^er 
license  tax,  together  with  the  damages  and  costs. 

3363.  First  Monday  in  each  month  settlements  and  payments  to  be  made. 

Sec.  3363.  On  the  first  Monday  in  each  month  the  collector  must  return  to 
the  auditor  all  licenses,  unsold,  and  be  credited  therewith,  and  must,  with  the 
auditor,  apjDear  at  the  treasurer's  ofiice  and  pay  into  the  county  treasuiy,  for 
the  use  of  the  county  general  fund,  all  moneys  collected  for  licenses  sold  during 
the  preceding  month,  take  the  treasurer's  receipt  therefor,  and  file  duplicates 
thereof  with  the  auditor.  The  auditor  must  credit  the  collector  and  charge  the 
treasurer  therewith. 

3364.  Fees  for  issuance  of  licenses. 

Sec.  3364.  For  each  license  issued,  the  collector  must  collect  a  fee  of  one 
dollar,  which  must  be  paid  into  the  salary  fund  of  the  county,  unless  the  auditor 
and  collector  are  paid  by  fees  instead  of  salaries,  in  which  case  the  dollar  must 
be  equally  divided  between  them;  provided,  that  in  the  county  of  SieiTa  the  fee 
so  collected  shall  belong  to  the  collector.  \ Amendment,  approved  March  24, 
1874;  Amendments  1^1^-4:,  137;  took  effect  from  passage. '^"^ 

ARTICLE  II. 

CLASSIFICATION    AND    TAXES. 

3376.   Classification  and  license  tax. 

Sec  3376.  Auctioneers  are  divided  into  eight  classes,  and  must  obtain  licenses 
from  the  tax  collector  as  follows: 

1.  Those  whose  average  monthly  sales  amount  to  one  hundred  thousand 
dollars  and  upwards  constitute  the  first  class,  and  must  pay  a  license  of  four 
hundred  dollars  per  quarter; 

2.  Those  whose   average   monthly  sales   amount   to    seventy-five   thousand 

(a)  The  original  section  did  not  have  the  proviso,  and  not  less  than  the  shortest  term  fixed  in  this  chap- 
It  was  amended  by  act  of  March  30. 1874  (Amendments  ter."                           ,      ,         ,.   ,  X       ■      *•                       ♦ 
1873-4,  43),  by  adding  to  the  original  the  following  This   amendment,  though  later  in  time    seems  to 
clause-  havebeensuperstdedby  the  amendment  in  the  tixt  by 

"  The  license  issued  must  be  for  a  term  designated  virtue  of  section  117  of  the  amendatory  act  of  March 

by  the  person  taking  it,  not  to  exceed  twelve  months,  30,  1874;  Amendments  18 13-4,  CO.    See  post,  4ia7. 

405 


337G-3379  POLITICAL  CODE. 

doUai-s,  aud  less  than  one  lunulred  thousand  dollars,  constitute  tlie  second 
class,  aud  must  pay  a  license  tax  of  three  hundred  dollars  per  quarter; 

3.  Those  whose  "averaoe  monthly  sales  amount  to  fifty  thousand  dollars,  and 
less  than  seveuty-live  thousand  dollars,  constitute  the  third  class,  and  must 
pay  a  license  tax  of  two  hundred  dollars  per  quarter; 

4.  Those  whose  aYera<,^e  monthly  sales  amount  to  thirty  thousand  dollars, 
and  less  than  lifty  thousand  dollars,  constitute  the  fourth  class,  and  must  pay 
u  license  tax  of  one  hundred  and  twenty-five  dollars  per  quarter; 

0.  Those  whose  average  monthly  sales  amount  to  twenty  thousand  dollars, 
aud  less  than  thirty  thousand  dollars,  constitute  the  fifth  class,  and  must  pay 
tt  license  tax  of  one  hundred  dollars  per  quarter; 

G.  Those  whose  average  monthly  sales  amount  to  ten  thousand  dollars,  and 
less  than  twenty  thousand  dollars,  constitute  the  sixth  class,  and  must  pay  a 
license  tax  of  sixty  dollars  per  quarter; 

7.  Those  whose  average  monthly  sales  amount  to  twenty-five  hundred  and 
less  than  ten  thousand  dollars  constitute  the  seventh  class,  and  must  pay  a 
license  tax  of  twenty-five  dollars  jier  quarter; 

8.  Those  whose  average  monthly  sales  are  less  than  twenty-five  hundred 
dollars  constitute  the  eighth  class,  and  must  pay  a  license  tax  of  seven  dollars 
and  a  half  per  quarter. 

(Sec.  3377  was  repealed  hy  act  approved  Aj^ril  1,  1872,  which,  however,  does 
not  ajipear  to  he  published  in  either  the  statutes  or  the  codes.  It  is  on  file  in 
the  (jffice  of  the  secretaiy  of  state.] 

3378.  Bi'idge,  ferry,  xoharf,  chute,  or  pier  license. 

Skc.  3378.  Licenses  to  take  tolls  on  bridges,  ferries,  wharves,  chutes,  or  jaiers 
are  fixed  annually  l)y  the  boards  of  supervisors.  The  licenses  therein  provided 
for  are  issued  l.)y  the  county  auditor,  and  must  be  obtained  from  the  tax  col- 
lector of  the  county. 

3379.  Brokers,  trust  companies  and  others. 

Sf.c.  3379.  Persons  engaged  in  banking,  loaning  mone}'  at  interest,  or  in 
Injying  or  selling  notes,  bonds,  or  other  evidences  of  indebtedness  of  i^rivate 
persons;  or  in  buying  or  selling  state,  county,  or  city  stocks,  or  other  evidences 
of  state,  county,  or  city  indebtedness;  or  stocks,  or  notes,  bonds,  or  other  evi- 
dences of  indebtedness  of  incori:)orated  companies;  or  in  buying  or  selling  gold 
dust,  gold  or  silver  bullion,  or  gold  or  silver  coin,  are  divided  into  six  classes, 
and  must  pay  licenses  as  follows: 

1.  Those  doing  business  in  the  aggregate  to  the  amount  of  two  hundred  and 
fifty  thousand  dollars  per  quarter  and  over,  constitute  the  first  class,  and  must 
\niy  u  license  of  one  hunchxd  dollars  per  quarter; 

2.  Those  doing  business  to  the  amount  of  tAvo  hundred  thousand  dollars, 
nud  less  than  two  hundred  and  fifty  thousand  dollars  per  quarter,  constitute  the 
second  class,  and  must  pay  a  license  of  eighty  dollars  j^er  quarter; 

3.  Those  doing  business  to  the  amount  of  one  hundred  thousand  dollars,  and 
le«H  than  two  hundred  th(jusand  dollars  per  quarter,  constitute  the  third  class, 
and  must  pay  a  license  of  forty  dollars  per  quarter; 

4.  Those  doing  business  to  the  amount  of  fifty  thousand  dollars  and  less 
than  one  hundred  thousand  dollars  per  (piarter,  constitute  the  fourth  class,  and 
must  jMiy  a  license  of  twenty-five  dollars  per  quarter; 

f).  Those  doing  business  in  any  amount  under  fifty  thousand  dollars,  and 
over  five  thousand  dollars  per  quarter,  constitute  the  fifth  class,  and  must  pay 
a  license  of  fifteen  dollars  per  cpiarter; 

n.  Those  doing  l)usiness  in  any  amount  under  five  thousand  dollars  per 
quarter,  constitute  the  sixth  class,  and  must  pay  a  license  of  three  dollars  per 
quarter. 

406 


GENERAL  POLICE  OF  STATE.  3380-3382 

3380.  Licenses. 

Sec.  3380.  Licenses  must  be  obtained  for  the  juirposes  hereinafter  named, 
for  which  the  tax  collector  must  require  payment  as  follows: 

Billiards. 

1.  From  each  proprietor  of  a  billiard  table,  not  kept  exclusively  for  family 
use,  for  each  table,  five  dollars  per  quarter;  and  for  a  bowlinjj  alley,  five  dol- 
lars per  quarter  for  each  alley;  but  no  license  must  be  granted  for  a  term  less 
than  three  months. 

Theah-es. 

2.  Theatres  are  divided  into  two  classes:  those  seating  nine  hundred  and 
seventy-five  or  more,  are  of  the  first  class;  those  seating  less  than  nine  hundred 
and  seventy -five,  are  of  the  second  class.  One  seat  is  twenty-two  inches. 
License  shall  be  granted  to  theatres  and  other  places  of  amusement  according 
to  the  following  schedule :  If  for  less  than  one  month,  first-class,  five  dollars 
per  day;  second-class,  five  dollars  per  day.  If  for  one  month,  and  less  than 
three  months,  first-class,  one  hundred  dollars  per  month;  second-class,  seventy- 
five  dollars  per  month.  If  for  three  months,  and  less  than  one  year,  first-class, 
three  hundred  dollars  joer  quarter;  second-class,  two  hundred  dollars  per 
quarter.  If  for  one  year,  first-class,  six  hundred  dollars;  second-class,  four 
hundred  dollars. 

Menagerie. 

3.  For  each  exhibition  for  pay  for  a  caravan  or  menagerie,  or  any  collection 
of  animals,  circus,  or  other  acrobatic  performance,  ten  dollars;  and  for  each 
show  for  pay  of  any  figures,  jugglers,  necromancers,  magicians,  wire  or  roj^e 
dancing,  sleight  of  hand  exhibitions,  five  dollars  each  day. 

Pawnbrokers. 

4.  From  each  j)awnbroker,  thirty  dollars  per  quarter. 
Intelligence  offices. 

5.  From  each  keeper  of  all  intelligence  offices,  fifteen  dollars  jier  quarter. 
[Amendment,  approved  March  30,  1874;  Aniendmenis  1873-4,  44;  took  effect  July 
6,  1874.^*' 

3381.  Retail  liquor  licenses. 

Sec.  3381.  Every  person  who  sells  spirituous,  malt,  or  fermented  liquors 
or  wine,  in  less  quantities  than  one  quart,  must  obtain  a  license  from  the  tax 
collector  as  j)rescribed  in  this  chapter,  and  make  therefor  the  following  payment: 

1.  Those  making  sales  to  the  amount  of  ten  thousand  dollars  or  more  as 
a  monthly  average,  constitute  the  first  class,  and  must  pay  forty  dollars  per 
month; 

2.  Those  making  sales  to  the  amount  of  five  thousand  dollars,  and  not  exceed- 
ing ten  thousand  dollars  as  a  monthly  average,  constitute  the  second  class,  and 
must  pay  twenty  dollars  per  month; 

3.  And  those  making  sales  of  less  than  five  thousand  dollars,  constitute  the 
third  class,  and  must  pay  five  dollars  per  month. 

3382.  Merchants  and  keepers  of  livery  stables  licenses. 

Sec.  3382.  Every  person  who,  at  a  fixed  place  of  business,  sells  any  goods, 
wares,  or  merchandise,  wines  or  distilled  liquors,  drugs  or  medicines,  jewelry 

(a)  The  original  section  differed  in  the  eecond,  performance,  or  other  musical  entertainment,  dancing 
third  and  fifth  subdivisious.  The  second  was  as  fol-  or  ballet,  the  same  pny  for  license  as  is  herein  pro- 
lows:  vided  for  a  theatre  license." 

"2.  From  the  manager  or  lessee  of  every  theatre,  five  The  third,  after  "circus"  had  the  word  "  eques- 

doUiirs  per  day,  if  granted  for  a  less  term  than  one  trlan." 

month;  if  granted  for  one  mouth,  one  hundred  dol-  The  fifth  read  "of  an  intelligence  office,"  and  If  not 

lars;  if  for  three  months,  two  hundred  dollars;  and  if  Intended  to  be  rendered  nugatory  whs  clearly  nt)t  im- 

for  one  year,  six  hundred  dollars;  and  for  each  exhibi-  proved  by  substituting  "  of  all  iutelligeuce  offices." 
tion  of  eerenaders,  negro  minstrels,  opera,  melodeon 

407 


3382-3384  POLITICAL  CODE. 

or  wares  of  precious  metals,  whether  ou  commission  or  otherwise  (except  agri- 
cultural or  A-inicultural  productions,  or  the  productions  of  any  stock,  dairy  or 
poultry  farm  of  this  state,  when  sold  Ly  the  producer  thereof,  and  except  such 
08  are  sold  by  auctioneers  at  public  sale  under  license),  and  all  persons  who 
keep  horses  or  carrisiges  for  hire  (except  such  as  are  used  in  the  transportation 
of  goods),  must  obtain  from  the  tax  collector  of  the  county  in  which  the  busi- 
ness is  ti-ansacted,  and  for  each  branch  of  such  business,  license,  and  pay  quar- 
terly therefor  an  amount  of  money  to  be  determined  by  the  class  in  which  such 
pei-sou  is  placed  by  the  tax  collector;  such  business  to  be  classified  and  regu- 
lated by  the  amount  of  the  average  monthly  sales  made  or  hiring  done,  and  at 
the  rates  following: 

1.  Those  who  are  estimated  to  make  average  monthly  sales  or  hiring  to  the 
amount  of  one  hundred  thousand  dollars  or  more,  constitute  the  first  class,  and 
must  i)ay  fifty  dollars  per  mouth; 

2.  Of  seventy-five  thousand  dollars,  and  less  than  one  hundred  thousand 
tlollni-s,  constitute  tbe  second  class,  and  must  pay  thirty-seven  dollars  and  fifty 
cents  per  month; 

3.  Of  fifty  thousand  dollars,  and  less  than  seventy-five  thousand  dollars, 
constitute  the  third  class,  and  must  pay  twenty-five  dollars  per  month; 

4.  Of  forty  thousand  dollars,  and  less  than  fifty  thousand  dollars,  constitute 
the  fourth  class,  and  must  pay  twenty  dollars  per  month; 

5.  Of  thirty  thousand  dollars,  and  less  than  forty  thousand  dollars,  consti- 
tute the  fifth  class,  and  must  pay  fifteen  dollars  per  month; 

C.  Of  twenty  thousand  dollars,  and  less  than  thirty  thousand  dollars,  consti- 
tute the  sixth  class,  and  must  pay  ten  dollars  per  month; 

7.  Of  ten  thousand  dollars,  and  less  than  twenty  thousand  dollars,  constitute 
tbe  seventh  class,  and  must  pay  seven  dollars  and  fifty  cents  per  month; 

8.  Of  five  thousand  dollars,  and  less  than  ten  thousand  dollars,  constitute 
the  eighth  class,  and  must  pay  five  dolhirs  per  month; 

0.  Of  two  thousand  five  hundred  dollars,  and  less  than  five  thousand  dollars, 
constitute  the  ninth  class,  and  must  pay  three  dollars  per  month; 

10.  Of  all  amounts  over  twelve  hundred  and  fifty  dollars,  and  under  two 
thousand  five  hundred  dollars  per  month,  constitute  the  tenth  class,  and  must 
pay  one  d(jllar  and  fifty  cents  per  month; 

11.  Of  all  amounts  less  than  twelve  hundred  and  fifty  dollars  per  month  con- 
stitute the  eleventh  class,  and  must  -pay  one  dollar  per  month.  [Amtmdmenf, 
appruvrd  March  10,  1874;  Amendments  1873-4,  187;  took  effect  immediately }'"'> 

8383.  J-Jjcceplion  in  using  liquors. 

Sec.  3383.  The  sale  of  liquors  and  wines  by  persons  licensed  under  the  pre- 
ceding section  must  not  be  in  less  quantity  than  one  quart  measure.     No  license 
must  be  rofinircd  of  physicians,  surgeons,  apothecaries,  or  chemists,  for  any 
wines  or  sjiiriluous  liquors  they  may  use  in  the  preparation  of  medicines. 
3334.   Peddlers'  and  hawkers'  license. 

Skc.  3384.  Every  traveling  merchant,  liawker,  or  peddler  who  carries  a  pack 
and  vends  goods,  wares,  or  merchandise  of  any  kind  other  than  the  manufac- 
tures or  productions  of  this  state,  must  pay  for  a  license  five  dollars  per  month; 
and  every  sucli  traveling  merchant,  hawker,  or  peddler  who  uses  a  wagon,  or 
one  or  more  animals,  for  the  jjurijose  of  vending  such  goods,  wares,  or  mer- 
chandise of  any  kind,  must  pay  for  a  license  fifteen  dollars  per  month;  and 
every  traveling  merchant,  hawker,  or  peddler  who  uses  a  trading  boat  or  other 

(a)  Thf  orlfc'ln*!  wttlr.ii  <Il.l  not  lirivc  tlic  worrls  "  or  "  9.  Of  aU  amounts  under  five  thouRnnd  doUnrs,  con- 

th<r  i-roiliiitlnnH  of  Huy  kIo,  k.  dalrv  or  pMultry  f.-.rni."  Btltute  the  ninth  claBB,  and  must  pay  three  dollars  per 

iDKttnil  of  KulxilviHiouH  iilui-,  tfu  au<i eKveu,  It  had  tlie  month." 
following: 

408 


GENERAL  POLICE  OF  STATE.  3384-3387 

water  craft  onl}^  shall  pa}^  a  merchant's  license  according  to  the  provisions  and 
classifications  of  section  3382  of  this  code.     [Amendment,  apj^roved  2Iardi  20, 

187G;  Amendments  1^1^-0),  50;  took  effect  from  passage  ^^ 

3385.  Animals  kept  for  propagation  to  he  licensed. 

Sec.  3385.  Every  person  who  keejDS  a  stallion,  jack,  or  bull,  and  who  permits 
the  same  to  be  used  for  the  purpose  of  propagation  for  hire,  must  annually 
obtain  a  license  therefor  from  the  tax  collector,  and  pay  therefor  as  follows: 

1.  Horses  that  are  hired  for  the  purpose  of  propagation,  by  the  season,  at 
one  hundred  dollars  or  more,  constitute  the  first  class,  and  require  a  license  of 
seventy-five  dollars; 

2.  At  seventy-five  dollars,  and  less  than  one  hundred  dollars,  constitute  the 
second  class,  and  require  a  license  of  sixty  dollars; 

3.  At  fifty  dollars,  and  less  than  seventy-five  dollars,  constitute  the  third 
class,  and  require  a  license  of  forty  dollars; 

4.  At  thirty  dollars  and  less  than  fifty  dollars,  constitute  the  fourth  class,  and 
require  a  license  of  twenty-five  dollars; 

5.  At  fifteen  dollars  and  less  than  thirty'  dollars,  constitute  the  fifth  class,  and 
require  a  license  of  fifteen  dollars; 

G.  All  at  less  than  fifteen  dollars,  constitute  the  sixth  class,  and  require  a 
license  of  ten  dollars; 

7.  For  each  jack,  ten  dollars; 

8.  For  each  bull,  ten  dollars. 

A  license  so  obtained  from  the  tax  collector,  under  the  provisions  of  this  act, 
shall  entitle  the  holder  thereof  [to]  the  right  to  go  into  any  county  of  this  state 
for  the  piirposes  of  propagation  without  further  license  or  expense.  {Amend- 
ment, appr'oved  March  7,  1876;  Amendments  1875-6,  56;  took  effect  from  pas- 
sage}'^'' 

3386.  Certain  exhibitions,  etc.,  exempted. 

Sec.  3386.  The  i^rovisions  of  subdivisions  2  and  3  of  section  3380  do  not  apply 
to  exhibitions  or  entertainments  given  for  the  benefit  of  churches,  schools,  or 
other  charitable  entertainments,  by  any  amateur  dramatic  association  or  literary 
society  of  the  town  or  district  in  which  such  exhibition  or  entertainment  is 
given. 

3387.  Present  incumbents  must  collect  licenses. 

Sec.  3387.  In  every  county  in  this  state  where  any  officer  other  than  the  tax 
collector  is  charged  with  the  collection  of  license  taxes,  such  officer  must,  until 
after  the  expiration  of  the  term  of  the  present  incumbent,  discharge  the  duties 
cast  upon  the  tax  collector  under  the  i^rovisions  of  Articles  I  and  II  of  this 
chapter. 

An  Act  to  facilitate  and  increase  the  collection  of  state  and  county  and  municiiJal  licenses  in 
the  city  and  county  of  San  Francisco. 

Approved  March  30,  1872;  1871-2,  736. 

Penalty  for  transacting  business  without  a  license  in  San  Francisco. 

Section  1.  If  any  person  or  persons,  whether  as  principal  or  principals,  agent 
or  agents,  clerk  or  clerks,  employee  or  employees,  or  any  firm  or  any  member 
of  any  firm  or  corporation,  shall  be  engaged  in  carrying  on,  pursuing,  or  trans- 
acting, within  the  limits  of  the  city  and  county  of  San  Francisco,  any  business, 
trade,  or  profession,  occupation  or  employment,  which  now  is  or  shall  hereafter 

(a)  The  original  section  after  the  word  "wagon"  (6)   The  original  section  had  only  three  snbdiviBions, 

had  the  words  "  boat  or  othtr  water  craft,"  and  did  which  were  as  follows:  "1.  For  each  stallion,  fifty  dol- 

riot  have  the  last  clause  commencing  with  the  words  lars;  2.  For  each  jack,  ten  dollars;  3.  For  each  bull, 

"and  every  traveling  merchant,  hawker  or  peddler  ten  dollars." 
■who  uses  a  trading  boat." 

409 


3387  POLITICAL  CODE. 

be  by  law  required  to  be  licensed,  without  Laving  first  obtained  and  procured 
the  license  therefor  so  required  by  the  laws  of  this  state,  or  by  the  lawful  orders 
of  the  board  of  supervisors  of  said  city  and  county,  or  shall,  after  five  days' 
notice  in  wiiting,  refuse,  neglect,  omit,  or  fail  to  comply  with  any  requirement 
or  requirements,  provision  or  provisions  of  the  laws  of  this  state  or  orders  of 
the  said  board  of  supervisors  requiring  such  person  or  persons,  firm  or  corpo- 
ration to  procure  a  license,  he,  she,  or  they,  or  either  of  them,  as  the  case  may 
be,  shall  be  deemed  guilty  of  a  misdemeanor,  and  on  conviction  thereof,  shall 
be  punished  by  a  fine  of  not  less  than  one  hundred  dollars,  or  by  imprisonment 
for  a  period  not  exceeding  thirty  days,  in  case  the  fine  is  not  paid. 

Foicers  ai^d  dudes  of  license  collectors. 

Sec.  2.  The  collector  of  licenses,  chief  deputy  collector  of  licenses,  and 
assistant  deputy  collectors  of  licenses  of  said  city  and  county  are  hereby  author- 
ized, empowered,  and  required  to  collect  all  state  and  county  licenses  provided 
for  and  required  by  law  to  be  collected  within  the  limits  of  said  city  and  county, 
in  addition  to  the  municipal  licenses  now  required  to  be  collected  or  which 
shall  hereafter  be  required  to  be  collected  by  them  or  either  of  them;  and  it 
shall  be  the  duty  of  said  collector  of  licenses,  deputy  collector  of  licenses,  and 
assistant  collectors  of  licenses  to  attend  to  the  collection  of  licenses,  and 
examine  all  places  of  business  and  persons  liable  to  pay  licenses,  and  to  see 
that  licenses  are  taken  out  and  paid  for.  They  shall  each  have  and  exercise,  in 
the  perfonnance  of  their  official  duties,  the  same  powers  as  police  officers  in 
serving  process  or  summons  and  in  making  arrests;  also,  shall  each  have  and 
exercise  the  power  to  administer  such  oaths  and  affirmations  as  shall  be  neces- 
sary in  the  dischai'ge  and  exercise  of  their  official  duties;  and  they  and  each  of 
them  are  hereby  empowered  to  enter  any  place  of  business  for  which  a  license 
by  law  is  provided  and  required,  free  of  charge,  at  their  pleasure,  and  to 
demand  the  exhibition  of  auy  license  for  the  current  time,  from  any  person,  or 
firm,  or  corporation  engaged  or  employed  in  the  transaction  of  any  business 
for  which  a  license  is  by  law  rendered  necessary;  and  if  such  jDcrson,  or  firm, 
or  corporation,  or  either  of  them,  shall  be  unable,  or  refuse,  or  neglect,  or  fail 
to  then  and  there  exhibit  such  license,  he,  she,  or  they,  as  the  case  may  be, 
shall  be  deemed  guilty  of  a  misdemeanor,  and  on  conviction  thereof  shall  be 
punished  as  provided  by  section  one  of  this  act  for  punishment  upon  conviction 
of  a  misdemeanor. 

Ordinances — Cily  auditor. 

Sec  3.  The  board  of  supervisors  of  the  city  and  county  of  San  Francisco  shall 
Lave  power,  by  ordinance,  to  license  and  regulate  all  such  callings,  trades  and 
eiiij»loymeuts  as  the  public  good  may  require  to  be  licensed  and  regulated,  and 
OH  are  not  pnjhibited  by  law,  and  shall  have  power  to  make  all  needful  miles 
and  regulations  to  govern  the  official  conduct  and  duties  of  tLe  collector  of 
licenses,  d('])uty  collector  of  licenses  and  the  assistant  collectors  of  licenses,  who 
sliall  each  hold  office  during  the  pleasure  of  the  power  appointing  them  (and 
who  hliall  pursue  uo  other  calling  or  business),  and  to  alter  and  amend  the  same 
from  time  to  time  in  such  manner  as  they  may  deem  proper  and  for  the  j^ubhc 
good,  and  to  fix  the  amounts  of  the  bonds  to  be  required  from  the  collector  of 
licenses  and  de])uly  collector  of  licenses  and  assistant  collectors  of  licenses. 
The  auditor  of  said  city  and  county  is  hereby  authorized  and  required  to  deliver, 
from  time  to  time,  to  the  collector  of  licenses,  as  many  of  such  municipal 
licenses  as  may  bo  recjuired;  also,  to  deliver  from  time  to  time  to  said  collector 
of  licenses  for  collection,  sucL  state  and  county  licenses  as  may  be  required  and 
such  as  ho  shall  have  received  from  the  controller  of  the  state,  and  to  sign  the 
same  and  charge  tLem  to  tLe  collector  of  licenses  receiving  them,  specifying  in 

410 


GENERAL  POLICE  OF  STATE.  3387 

tlie  charge  the  amounts  thereof  named  in  such  licenses  respectively,  and  the 
class  of  licenses,  taldng  receipts  therefor;  and  said  collector  shall  proceed  to 
collect  the  same,  signing  the  same  in  lieu  of  the  county  treasurer;  and  he  shall 
daily  pay  to  the  treasurer  of  the  said  city  and  county  all  moneys  so  collected  for 
licenses  sold,  or  by  him  received  as  fees;  and  shall,  under  oath,  at  least  once  in 
each  calendar  month,  and  oftener  when  required  so  to  do  by  the  auditor,  make 
to  the  auditor  a  report  of  all  svich  licenses  sold  and  on  hand  and  of  all  amounts 
so  i)aid  to  the  county  treasurer  in  the  same  inanner  and  upon  the  same  condi- 
tions as  by  law  the  county  treasurer  heretofore  has  been  required  to  make  return 
thereof  to  the  county  auditor,  and  shall  at  such  time  exhibit  to  the  auditor  all 
unsold  licenses  in  his  hands  and  the  treasurer's  receipts  for  all  moneys  paid  into 
the  treasury;  and  all  licenses  so  signed  by  the  license  collector  or  deputy  license 
collector  shall  be  as  vahd  as  if  signed  by  the  county  treasurer.  All  fees  so  paid 
to  him  shall  be  placed  to  the  credit  of  the  special  fee  fund  by  the  said  treasurer. 

Appointments  and  salaries. 

Sec.  4.  It  is  hereby  made  the  duty  of  the  mayor,  the  auditor  and  the  treas- 
urer of  said  city  and  county,  and  they  are  hereby  authorized  and  empowered  to 
appoint,  subject  to  confirmation  by  the  board  of  supervisors  of  said  city  and 
county,  one  j)erson  as  collector  of  licenses  for  the  city  and  county  of  San  Fran- 
cisco, who  shall  receive  a  monthly  salary  of  two  hundred  dollars,  payable 
monthly;  and  the  said  collector  of  licenses  is  hereby  authorized  and  empowered 
to  appoint  one  dejjuty  collector  of  licenses,  who  shall  be  paid  a  monthly  salary 
of  one  hundred  and  fifty  dollars,  payable  monthly,  and  three  assistant  collectors 
of  licenses,  who  shall  be  paid  each  a  monthly  salary  of  one  hundred  and  twenty- 
five  dollars,  payable  monthly.  Such  license  collector  and  deputies  shall  hold 
office  during  the  pleasure  of  the  board  of  supervisors.  All  salaries  herein  pro- 
vided for  shall  be  paid  from  the  general  fund  in  the  same  manner  as  the  salaries 
of  other  city  and  county  officers  are  paid.  The  assistant  collectors  of  licenses 
and  the  deputy  collector  of  licenses  shall,  under  the  direction  and  instructions 
of  the  collector  of  licenses,  observing  the  form  and  i-ules  and  regulations  pre- 
scribed by  said  collector  and  board  of  supervisors,  make  to  the  said  collector 
daily  rejDorts  of  duty  performed  and  daily  payments  of  money  received  for 
licenses  and  fees;  and  at  the  close  of  each  month,  and  oftener  when  required  by 
the  collector  of  licenses,  each  shall  make  oath  to  the  auditor  that  he  has  so  paid 
over  to  the  collector  of  licenses  all  such  moneys,  and  a  failure  so  to  do  shall  be 
a  cause  for  removal  from  office. 

Revoking  licenses. 

Sec.  5.  The  police  commissioners  of  the  city  and  county  of  San  Francisco  are 
hereby  authorized  and  empowered  to  revoke  any  licenses  provided  to  be  collected 
under  the  provisions  of  this  act  upon  the  conviction  in  the  police  judge's  court 
of  any  person  of  disorderly  or  improper  conduct,  or  any  offense  upon  the  prem- 
ises of  any  person  holding  a  license,  or  upon  the  conviction  of  the  person  holding 
said  license  of  any  offense  which  in  the  judgment  of  said  commissioners  ought 
to  disqualify  such  person  from  holding  such  license. 

Duty  of  county  treasurer. 

Sec.  6.  It  shall  be  the  duty  of  the  county  treasurer  to  deliver  to  the  collector 
of  licenses,  immediately  upon  this  act  taking  effect,  all  papers,  books,  mate- 
rials, and  other  property  appertaining  and  belonging  to  the  license  department. 
And  all  acts  or  parts  of  acts  requiring  the  county  treasurer  to  collect  licenses 
in  the  city  and  county  of  San  Francisco,  and  all  other  acts  or  parts  of  acts,  so 
far  as  they  conflict  with  this  act,  are  hereby  repealed;  provided,  that  nothing  in 
this  act  contained  shall  cm-tail  the  clerical  force  in  the  office  of  the  treasurer  of 

411 


3387-3398  POLITICAL  CODE. 

the  city  and  county  of  San  Francisco  Juriug  the  term  of  office  of  the  present 
incumbent. 

Sec.  7.  This  act  shall  take  effect  and  be  iu  force  ou  and  after  the  twentieth 
diiy  6ub.sequeut  to  its  passage. 


TITLE   VIII. 

Propcrtij  of  tijc  State. 

Chapter    I.  The  Public  Lands 3395 

II.  The  Yosemite  Valley  and  Mariposa  Big  Tree  Grove 3584 

III.  The  State  Burying  Ground 3596 

CHAPTER  I 

THE   PUBLIC   LANDS. 

Abticle  I.  Gknkral  Pkotisions  Respecting  thk  Public  Lands 3395 

II.  Swamp  and  Ovkkflowed,    Salt  Marsh,  and  Tidk  Lands 31-iO 

III.  School  Lands 3494 

IV.  Paymknts,  Ceetificatks  01--  PuncHASE,  AND  Patents 3512 

V.  Sklkction  and  Sale  of  Univeksity  Lands 3533 

VI.  Puuceedings  against  Delinquent  Purchasers 3546 

VII.  Miscellaneous  Provisions  Relating  to  Public  Lands 3566 

ARTICLE  I. 

GENERAL    PROVISIONS    RESPECTING    THE    PUBLIC    LANDS. 

3395.  RerjiMer  to  keep  certain  accounts  and  records. 

Si:i;.  3395.  The  register  of  the  state  land  office  must  keep  separate  accounts 
and  records  in  relation  to  each  class  of  lands  to  which  the  state  is  entitled, 
which  must  show: 

1.  The  number  of  the  survey  or  location,  and  the  date  of  the  approval; 

2.  The  name  of  the  locator,  the  description  of  the  lauds  by  legal  subdivis- 
ions, the  price  per  acre  at  which  they  are  sold,  the  amount  paid,  the  date  of 
payment,  the  number  and  date  of  the  certificate  of  purchase; 

3.  The  date  of  the  patent,  when  it  has  been  issued. 

3396.  Musi  b'C]}  plats,  and  note  locations  thereon. 

Sec.  3396.  He  must  also  keej)  plats  of  such  lands,  upon  which  all  approved 
locati(jns  and  surveys  must  be  designated  by  their  numbers. 

3397.  Mu.sl  note  on  plats  the  Usmmj  of  certificates  or  patents. 

Sec.  3397.  When  certificates  of  purchase  or  patents  are  issued,  the  fact 
must  be  noted  on  the  plats. 

3398.  Siirv('iior-(jc}ieral  tu  he  state  locati)tg  agent. 

Sec:.  3398.  Tlio  surveyor-general  is  the  general  agent  of  the  state  for  the  loca- 
tion in  the  United  States  land  offices  of  the  unsold  portion  of  five  hundred 
tliousand  acres  (.f  land  granted  to  the  state  for  school  purposes,  and  the 
sixteenth  uikI  tliirly-hixth  sections  granted  for  the  use  of  public  schools,  and 
lands  in  lieu  thereof. 

(Sees.  3399,  3400,  3101,  3402,  3103  and  3I04*»^  were   repealed  by  act  ap- 

£"*  ^^'!?''.I!*.'  *'■'■*•"•'"•     .  .  and  an  attornrj--at.lnw,  and  must  eetablisli  and  keep  an 

Hr.r.  J-tJ-J.   riK-  iit«l*- niiiiit  »)«  n-i>r«c<  i.trd  Ixforf  tho  offi(-e  in  WaHbington. 

I  nlt«t(l   Kt4t.  »  Uiid  .l-imrtiiKiit  lit  Wiudilugton  by  au  Sec.  3401.  H<;  imist: 

»g.-iit  «i.i..,lii;.  -1  liv  th-  li.irv.  yr.r-K.  nnriil.  1.  Procure  from  the  United  States  land  offices  in  this 

Hec.  moo.   riii  ii(i<ijt  luuiit  be  B  cltlztu  of  tliiH  Htato, 

41  a 


PEOPEIITY  OF  STATE.  3398-3411 

proved  January  19,  1874;  Amendments  1873-4,  139.  The  repeal  was  con- 
tained in  the  first  section  of  said  act.  There  were  two  other  sections  as 
follows :] 

3Iapi^,  documents,  and  papers. 

Sec.  2.  The  person  wlio  has  been  acting  as  land  agent,  under  the  sections 
hereby  repealed,  is  hereby  ordered  and  directed  to  return  to  the  surveyor-<>-en- 
eral  of  this  state  all  maps,  documeiats,  and  papers,  now  in  his  possession,  or 
under  his  control,  touching  the  lauds  of  this  state,  furnished  him  by  the  offi- 
cers of  this  state  or  of  the  United  States,  at  his  earliest  convenience. 

Sec.  3.  This  act  shall  be  in  force  from  and  after  its  passage. 

3405.  Surveyor-general  to  keep  certain  recordt^. 

Sec.  3405.  The  surveyor-general  must  provide  the  necessary  record-book,  and 
cause  all  lists  or  patents  for  lands  from  the  United  States  to  be  recorded 
therein. 

3406.  Duty  of  surveyor-general  on  application  for  purchase  of  lands. 

Sec.  3406.  The  surveyor-general  must,  whenever  application  is  made  to  hira 
for  any  portion  of  the  lands  mentioned  in  section  3398,  communicate  with  the 
United  States  laud  office,  and  ask  that  the  lands  described  in  the  application 
be  accepted  in  part  satisfaction  of  the  grant  under  which  it  is  sought  to  be 
located. 

3407.  Cojyy  of  U.  S.  register's  approval. 

Sec.  3407.  When  the  acceptance  of  the  register  of  the  United  States  land 
office  is  obtained,  he  must  give  to  the  party  applying^  a  copy  of  his  approval. 

3408.  [Sec  3408  was  repealed  by  act  of  AiotI  3,  1876;  Amendments  1875-6, 
57;  took  effect  from  passage. ^^'] 

3409.  Surveyor-general  to  obtain  statement  as  to  condition  of  school  sections. 

Sec  3409.  The  surveyor-general  must,  after  the  survey  of  any  township  by 
the  United  States  surveyor-general,  obtain  from  the  United  States  land  office  a 
statement,  showing  whether  or  not  the  sixteenth  and  thirty-sixth  sections  therein 
belong  to  the  state. 

3410.  Registers  and  receivers,  how  compensated  for  services  rendered  state. 

Sec  3410.  The  registers  and  receivers  of  the  United  States  land  offices  must 
present  their  accounts  for  services  rendered  the  state  to  the  surveyor-general, 
who,  if  he  finds  the  same  correct,  according  to  fees  allowed  registers  and  re- 
ceivers by  act  of  congress,  or  by  the  department  of  the  interior,  must  certify 
the  same  to  the  state  board  of  examiners,  who  must  audit  and  allow  such  ac- 
counts, and  they  must  be  paid  out  of  the  general  fund. 

3411.  Surveyor-general  to  represent  state  in  contests  relating  to  lands. 

Sec  3411.  The  surveyor-general  must  represent  the  state  in  all  contests  be- 
tween it  and  the  United  States  in  relation  to  public  lands. 

state  abstracts  of  aU  lands  applied  for  by  the  state,  and  Sec.  3404.  Each  purchaser  of  land  from  the  state, 

cause  the  same  to  be  listed  to  the  state;  upon  receiving  a  patent  for  land,  must  pay  to  the 

2.  Act  as  attorney  for  the  state  before  the  land  de-  rtf^ister   two  and  one  half    cents    i)er  aero  therefor, 
partmeut  at  Washington;  which   must  be  paid  into  the  general   fund  of  the 

3.  Perform  such  other  duties  relative  to  the  public  state. 

lands  and   the  Interest  of  the  state   therein   as  may  (a)  Repealed  section: 

be  required  of  him  by  the  register  or  surveyor-gen-  Sec.   3408.    Where   townships    have  not   been   sub- 

eral.  divided,  but  township  and  other  lines  have  been  estab- 

Sec,  3402.  He  receives  from  the  state,  as  compensa-  lished  so  as  to  show  tliiit  a  tract  of  hind  is  included  In 

tion  for  his  services,  two  and  one  half  cents  per  acre  any  thirty-sixth  section,  and  the  party  applying  for  the 

for  all  lands  procured  by  him  to  be  listed  to  it.  same  makes  affidavit  that  tlure  is  no  claim  to  the  same 

Sec.  3403.  On  the  first  Munday  of  each  month  the  other  than  his  own,  and  that  it  is  not  occupied  by  any 

surveyor-general  must  certify  to  the  board  of  exaraiu-  settler,  the  surveyor-general  may  approve  such  loca- 

ers  the  number  of  acres  for  which  United  States  lists  tion   without  the   acceptance   of  the   register  of   the 

have  beeu  filed  in  his  office  during  the  month  next  pre-  United  States  land  office,  and  the  register  of  the  state 

ceding,  together  with  a  statement  of  the  amount  due  land  office  may  issue  a  certificate  of  purchase  therefor, 

the  agent   upon  the  lauds  so  listed,  and  if  found  to  be  But  no  patent  is  issued  therefor  until  the  location  is 

correct,  the  board  must  approve  the  account  and  certify  approved  by  the  United  States,  nor  is  tlie  state  respon- 

it  to  the  controller  of  state,  who  must  draw  his  war-  sible  in  damages  if  the  land  Is  not  subject  to  loca- 

rant  in  favor  of  the  agent  for  the  amount  thereof,  and  tion. 
the  state  treasurer  must  pay  the  same  out  of  the  gen- 
eral fund. 

413 


3412-3417  POLITICAL  CODE. 

3412.  Place  of  takmg  featimoiuj  to  be  fixed. 

Sec.  3412.  When  iie  desires  to  take  testimonj'  under  the  provisions  of  the 
act  of  congress  to  quiet  land  titles  in  California,  passed  July,  eighteen  hundred 
and  sixty-six,  he  must  request  the  United  States  surveyor-general  to  fix  a  place 
convenient  of  access  by  the  witnesses,  and  the  time  for  talcing  such  testimony. 

3413.  Mivj  require  nltoruey-general  to  attend. 

Stc.  3413.  He  may  require  the  attorney-general  to  attend  and  represent  the 
state  at  the  taking  of  such  testimony;  and  the  traveling  expenses  of  each  are 
a  charge  agixiust  the  state.  All  claims  for  traveling  expenses  must  be  audited 
and  allowed  by  the  board  of  examiners,  and  paid  out  of  the  general  fund. 
But  not  more  than  fifteen  hundred  dollars  must  be  allowed  in  any  one  year  for 
such  expenses. 

3414.  Contest  as  to  approval  of  surveijs,  etc.,  how  dif<posed  of. 

Sec.  3414.  "When  a  contest  arises  concerning  the  approval  of  a  survey  or 
location  before  the  surveyor-general,  or  concerning  a  certificate  of  purchase  or 
other  evidence  of  title  before  the  register,  the  officer  before  whom  the  contest 
is  made  may,  when  the  question  involved  is  as  to  the  survey,  or  one  purelj^  of 
fact,  or  whether  the  land  applied  for  is  a  part  of  the  .swamjD  or  overflowed  lands 
of  the  state,  or  whether  it  is  included  within  a  confirmed  grant,  the  lines  of 
which  Lave  been  run  by  authority  of  law,  proceed  to  hear  and  determine  the 
same;  but  when,  in  the  judgment  of  the  officer,  a  question  of  law  is  involved, 
or  when  either  party  demands  a  trial  in  the  courts  of  the  state,  he  must  make 
an  order  referring  the  contest  to  the  district  court  of  the  county  in  whicih  the 
land  is  situated,  and  must  enter  such  order  in  a  record-book  in  his  office. 

3415.  Arlion. 

Sto.  341o.  After  such  order  is  made  either  party  may  bring  an  action  in  the 
district  court  of  the  county  in  which  the  land  in  question  is  situated  to  de- 
termine the  conflict,  and  the  production  of  a  certified  copy  of  the  entry,  made 
by  either  the  suiweyor-general  or  the  register,  gives  the  court  full  and  complete 
juri.sdiction  to  hear  and  determine  the  action. 

3416.  Effect  of  judgment. 

Sec.  341(5.  Upon  filing  with  the  surveyor-general  or  register,  as  the  case  may 
be,  a  copy  of  the  final  judgment  of  the  court,  that  officer  must  approve  the 
survey  or  location,  or  issue  the  certificate  of  purchase  or  other  evidence  of 
title  in  accordance  with  such  judgment. 

3417.  Limifations. 

Sec.  3417.  Unless  the  party  contestant  commences  his  action  within  sixty 
days  after  the  order  of  reference  is  made,  his  rights  in  the  premises  and  under 
liis  application  cease. 

[Sees.  3418,  3419,  3420,  and  3421  "'  were  repealed  by  act  approved  March  28, 
18<4;  Amendments  1873-4,  141;  took  effect  immediately.] 

'■  ''■'•  receipt  of  fin  approvrd  survny,  record  the  approval :  he 

/•  'V  Burvcyor.  upon  receiving  an  niiiKt  mark  all  appr.iviil  surveys  upon  the  niiipa  of  hla 

*■"'  •'■>'  rofiulred  hy  nny  of  the  pro-  olUce;  and  all  liiH  books  and  niaps  are  open  to  public 

ist  liitli)r«(!  the  date  of  the  re-  iufipection;- 

til"'  Hiin"-  In  n  book  kept  In  his         Sko.  •.(420.  If  any  county  surveyor  refuses  or  neglects 

'   r  ill  wlilch  It  Is  received,  «iv-  to  ni'ike  any  survey  within  the  time  prescribed  by  law, 

"■-■  '  "'  applicant,  and  the  do-  the  siirveyur-yeneral  may  within  thirty  days  ai'Utr  the 

•'"^'  •ulidivlslonH.  expiration  of  such  time  appoint  some  person  to  make 

tiilrty  dnvH  after  receiv-  the  saTne;  ami  the  survey  so  made,  if   made  within 

ti    hmdM  are  subject  to  sale,  thirty  days  after  such  appointment,  must  be  filed  and 

I'll  and  Held  not<'H,  and  record  recorded  in  tli<:  surveyor-general's  office,  and  is  as  valid 

'- '■nil-,  and  forward  d-.ipll-  as  if  made  by  the  county  surveyor. 

■ '"' "  <'"I'y  of  the  appll-         Hkc.  a421.  All  surveys  must  be  made  according  to  the 

fur  Bpi)r<iviil,  who  must  instructions  of  the  survc^yor-general,  and  mtist    con- 

refurn  Jh.-  same  with  form  as  near  as  practicable  to  the  lines  of  the  public 
surveys. 


c:.' 


LlK  tjjr   -.hi,     I 'i.    ..  .'iiiiv  surveyor  must,  upon  the 

414 


PROPERTY  OF  STATE.  3422-3429 

3422.  County  treasurer  to  report  to  register. 

Sec.  3422.  Upon  the  first  day  of  every  raonth  the  county  treasurer  must  make 
a  re2)oi't  to  the  register  of  all  moneys  received  for  land  during  the  preceding 
month,  showing  the  number  of  the  location  or  survey,  tlie  name  of  the  pur- 
chaser, and  the  amount  paid  since  the  date  of  his  last  rop<n-t,  whether  as  prin- 
cipal or  interest,  which  amounts  must  be  entered  in  the  columns  belonging  to 
the  particular  class  of  land  upon  which  each  payment  has  been  made.  The 
payment  of  the  fee  for  the  certificate  of  purchase  must  also  be  entered  in  the 
proper  column,  and  the  ti-easurer  must  then  send  the  rejiort  to  the  auditor,  who 
must  compare  the  items  with  the  account  of  the  treasurer;  and  if  the  same  agrees 
with  his  entries,  countersign  the  report  and  return  it  to  the  treasurer. 

3423.  Duty  of  register  on  receipt  of  report. 

Sec.  3423.  These  reports  must  be  forwarded  to  the  register  at  once,  and  upon 
receipt  thereof  the  register  must  enter  the  payment  so  reported  to  the  credit  of 
the  purchaser  in  the  books  of  his  office.  He  must  notify  the  county  treasurer 
of  the  receipt  of  his  report,  and  if  it  is  not  correct,  return  it  for  correction. 

3424.  Quarterly  reports  of  the  county  treasurers. 

Sec.  3424.  At  the  end  of  each  quarter  the  county  treasurer  must  report  to  the 
controller  of  state  the  sum  which  has  been  received  during  the  quarter  upon 
each  class  of  land;  which  report  must  be  referred  to  the  register  for  examination 
and  comparison  with  the  books  of  his  office. 

3425.  Treasurers  to  pay  over  moneys  received  for  laiids. 

Sec.  3425.  When  the  register  certifies  to  the  correctness  of  the  report  it  must 
be  retvirned  to  the  controller,  who  must  thereupon  make  his  settlement  with  the 
county  treasurer,  who  must  pay  over  to  the  treasurer  of  state  all  moneys,  con- 
troller's warrants,  or  other  evidences  of  state  indebtedness  which  he  may  have 
received  in  payment  for  such  lands,  excej)t  as  provided  in  the  next  section. 

3426.  County  treasurers  to  retain  moneys  received  for  swamp  lands. 

Sec.  3426.  The  county  treasurer  must  retain  all  moneys  arising  from  the  sale 
of  swamp  and  overflowed  lands,  and  place  the  same  to  the  credit  of  a  fund  known 
as  the  "  Swamp  Land  Fund"  of  the  county. 

3427.  Interest,  lioto  computed  and  when  payable. 

Sec  3427.  The  county  treasurer  must  compute  interest  on  all  sales  from  the 
date  of  the  approval  of  the  survey,  or  the  date  of  the  certificate  of  location,  to 
the  first  of  January  following  such  date;  or  if  for  lands  already  purchased,  then 
up  to  the  first  of  January  following  the  day  upon  which  the  interest  falls  due; 
after  which  time  all  payments  of  jDrincipal  or  interest  fall  due  on  the  first  day  of 
January. 

3428.  Compensation  of  county  treasurer  and  auditor. 

Sec.  3428.  The  county  treasurer  is  entitled  to  retain  one  per  cent,  of  all 
moneys  j^aid  him  for  lands  under  the  provisions  of  this  article,  and  the  auditor 
is  entitled  to  one  per  cent,  on  amounts  certified  to  by  him  as  provided  in  section 
3492,  which  he  must  receive  from  the  treasurer,  and  his  receipt  therefor  is  a 
voucher  for  the  controller  of  state  in  his  settlement  with  such  treasurer.  "When 
the  auditor  or  treasurer  receives  a  salary  as  auditor  or  treasurer,  the  percentage 
must  be  paid  into  the  county  treasury. 

3429.  Surveyor-general  and  register   to  issue  instructions  and  prepare  printed 

forms. 
Sec  3429.  The  surveyor-general  and  register  must  issue  all  instructions,  and 
prepare  and  have  printed  all  blank  forms  necessary  to  carry  into  operation  the 
provisions  of  this  chapter. 

415 


3429  POLITICAL  CODE. 

An  Act  for  the  relief  of  purchfisers  of  state  lands. 

Approved  Msrch  27,  1872;  1871-2.  587. 

Purchase  onand  from  t^tate,  xchcn  title  vested. 

Section  1.  "SVLeu  application  has  been  made  to  purchase  lands  from  this  state 
and  payment  made  to  the  treasurer  of  the  proper  county  for  the  same,  in  whole 
or  iu  part,  and  a  certiticate  of  purchase  or  patent  has  been  issued  to  the  appli- 
cant, the  title  of  the  state  to  said  lauds  is  hereby  vested  in  said  applicant,  or 
bis  assi^^ns,  upon  his  making  full  payment  therefor;  provided,  that  no  other 
application  has  been  made  for  the  purchase  of  the  same  lands  prior  to  the  issu- 
ance of  said  certificate  of  purchase;  provided  further,  that  this  act  shall  not 
apply  to  school  lauds  except  to  the  amount  of  three  hundred  and  twenty  acres 
to  any  one  purchaser. 

Patent  to  grantee  under  slierijf's  deed. 

Sec.  2.  AMien  part  payment  ouly  has  been  made  for  lands  sold  by  this  state  and 
certificates  of  purchase  issued  for  the  same,  and  said  lands  have  been  subse- 
quently sold  under  execution  and  a  sheriff's  deed  issued  therefor,  the  register 
of  the  state  laud  office  is  hereby  directed  to  issue  to  the  grantee  named  in  said 
deed  or  to  his  assigns  a  patent  for  said  lands,  upon  his  producing  and  svirren- 
dering  said  sheriflf's  deed  and  assignment,  if  any  there  be,  and  making  full 
payment  to  the  state  for  said  lands. 

BesfUution  of  pu)-chase-money ,  ivhen. 

Sec.  3.  "Whenever  the  state  has  issued  a  certificate  of  purchase  for  any  land 
Bold  as  swamp  and  overflowed,  and  the  United  States  has  sold  and  issued  a 
patent  for  the  same  land,  and  the  title  of  the  United  States  is  held  and  owned 
by  the  purchaser  from  the  state  or  his  assigns,  or  where  the  land  so  purchased 
from  the  state  shall  prove  not  to  have  been  its  property,  the  amount  jDaid 
to  the  state  for  such  land  shall  be  refunded  to  such  purchaser  or  his 
assigns,  and  the  board  of  sujoervisors  of  the  county  in  which  the  land  is 
situated  shall  draw  a  warrant  on  the  treasurer  of  the  county  for  such  amount, 
and  the  said  treasurer  shall  pay  the  same  out  of  moneys  in  the  swamp  land 
fund  of  the  county  credited  to  such  purchaser. 

Act  not  to  npphj  to  certain  lands. 

Sec.  4.  The  provisions  of  this  act  shall  not  ai:)ply  to  any  lands  within  the 
county  of  San  Diego,  or  within  five  miles  of  the  city  and  county  of  San 
Francisco,  or  within  five  miles  of  the  city  of  Oakland,  or  within  one  and  a  half 
miles  of  the  state  prison  at  San  Quentin. 

Sec  5.  This  act  shall  take  effect  and  be  in  force  from  and  after  its  passage. 

An  Act  to  lef^'ixlizo  ai>i)lic'ation3  beretoforc  made  for  the  purchase  of  lauds  belonging  to  this 
Rtat«,  find  I'j  (■Miifinu  the  title  of  the  purchasers  under  such  applications. 

Approved  March  27,  1872;  1871-2,  022. 

Applicali/ju.^  J ur  certain  lands  legalized. 

Section  1.  All  ai)i)licati(jns  heretofore  made  for  the  i3urchase  of  lands  belong- 
ing to  this  state,  under  the  provisions  of  any  act  authorizing  the  sale  of  state 
lands,  shall  be  good  and  valid,  although  the  land  described  in  such  apj^lication 
and  affidavit  may  Ije  styled  salt  marsh  and  tide  laud,  when,  in  fact,  it  is  swamp 
and  overHowed  land;  or  may  be  styled  swamp  and  overflowed  land,  when,  in 
fact,  it  is  salt  marsh  and  tide  land;  or  may  be  styled  sw^amp  and  ovei-flowed  and 
Halt  niarsli  and  ti«le  land,  when,  in  fact,  it  may  be  either.  And  the  application 
first  made  shall  liave  the  ])ref('rence  by  whatever  style  it  may  describe  the  land; 
provided,  the  same  be  in  all  other  respects  substantially  conformable  to  law. 
Certain  jiali^nt.^  declared  valid. 

Sec.  2.    In  all  cases  where  patents  have  been  or  may  hereafter  be  issued  upon 

41G 


PEOPERTY  OF  STATE.  3429-3443 

any  siicli  api^lication  or  affidavits  as  clescvilied  in  section  one  of  this  act  for  any 
such  land,  the  same  shall  he  deemed  and  held  to  convey  tlie  leji^al  title  to  the 
land  in  such  patent  or  patents  described  to  the  ])urchaser  therein  mentioned, 
by  whatever  style  such  land  may  be  designated  in  such  patent;  and  the  State  of 
California  does  hereby  grant  to  the  purchasers  named  in  such  patents,  or  their 
assigns  or  grantees,  in  case  the  title  has  been  transferred,  all  its  rights,  title, 
and  interest  in  and  to  the  lands  in  such  patents  described. 
Act  not  to  apply  to  certain,  lands. 

Sec.  3.  The  provisions  of  this  act  shall  not  be  construed  to  recognize,  con- 
firm, or  validate  any  title  to  any  lands  lying  within  live  miles  of  the  city  and 
county  of  San  Francisco,  or  of  the  city  of  Oakland,  or  within  one  and  a  half 
miles  of  the  state  prison  at  San  Quentin. 

Sec.  4.  This  act  shall  take  effect  and  be  in  force  from  and  after  its  passage. 

ARTICLE  II. 

SWAMP    AND    OVERFLOWED,    SALT    MARSH,    AND    TIDE    LANDS. 

3440.  Swamp  lands,  etc.;  price  and  manner  of  payment. 

Sec.  3440.  The  swamp  and  overflowed,  salt  marsh,  and  tide  lands  belonging 
to  the  state  must  be  sold  at  the  rate  of  one  dollar  i^er  acre,  in  gold  coin,  pay- 
able, twenty  per  cent,  of  the  principal  within  fifty  days  from  the  date  of  the 
approval  of  the  survey  b}^  the  surveyor-general;  and  the  balance,  bearing  interest 
at  the  rate  of  ten  per  cent,  per  annum,  j)ayable  in  advance,  is  due  and  paj'able 
one  j-ear  after  the  passage  of  any  act  of  the  legislature  requiring  such  pay- 
ment, or  before,  if  desired  by  the  purchasers.  Bonds  or  warrants  of  districts 
haviug  an  outstanding  indebtedness  are  receivable  in  payment  for  lands  in  such 
district  at  par. 

3441.  Application  not  to  he  approved  until  land  segregated. 

Sec.  3441.  The  surveyor-general  of  the  state  must  not  approve  any  applica- 
tion, nor  must  the  register  issue  evidence  of  title,  for  swamj)  and  overflowed 
land,  until  six  months  after  the  same  has  been  segregated  by  authority  of  the 
United  States.  [Amendment,  approved  March  28,  1874;  Amendments  1873-4, 141; 
took  effect  immediately .'^^'^ 

3442.  Settlers  preferred  purchasers  for  ninety  days. 

Sec.  3442.  Settlers  upon  swamj3  and  overflowed  lands  belonging  to  the  state 
who  occupy  the  same  for  farming  or  grazing  purposes,  and  whose  occupation  is 
evidenced  hj  actual  inclosure,  or  by  ditches  or  monuments  showing  the  actual 
extent  thereof,  are  preferred  purchasers  for  such  lands  for  six  months  after 
segregation. 

3443.  AppAication  for  purchase  of  sxcamp,  etc.,  land. 

Sec.  3443.  Any  person  desiring  to  j^urchase  swamp  and  overflowed  or  tide 
lands  above  low  tide,  must  make  an  afiidavit  and  file  the  same  in  the  office  of 
the  surveyor-general  of  the  state,  that  he  is  a  citizen  of  the  United  States,  or 
has  filed  his  intention  to  become  so,  a  resident  of  the  state,  of  lawful  age;  that 
he  desires  to  purchase  lands  (describing  them)  under  the  law  providing  for  the 
sale  of  swamp,  and  overflowed,  and  tide  lands;  that  he  does  not  know  of  any 
valid  claim  to  the  same,  other  than  his  own,  and  if  the  land  is  swamp  and  over- 
flowed, that  he  knows  the  land  applied  for,  and  the  exterior  bounds  thereof; 
and  knows  of  his  own  knowledge  that  there  are  no  settlers  thereon,  or,  if  there 
are,  that  the  land  has  been  segregated  more  than  six  months  by  authority  of 

(a)  The  original  section  had  the  words  "  survey  of  "  instead  of  "  application,"  and  before  "  the  United  States  " 
it  had  the  words  "  this  state  or." 

27  417 


3443-341G  POLITICAL  CODE. 

the  United  States,  niul  that  the  hiiKl  which  he  now  owns  (swamp  and  over- 
flo\Yed),  to^'ether  with  that  sought  to  be  purchased,  does  not  exceed  six  hun- 
dred and  foi-ty  acres.  [Amendment,  approved  3Iarck  28,  1874;  Amendments 
1873-4,  14U;  look  effect  immediatehj:"^ 

An  .\<.-t  for  the  protectiou  of  .settlers  on  public  lands  claimed  by  the  state. 
Approved  March  10,  1871;  1873-4,  327. 

Xo  chiim  a()otni!t  bona  fide  settlers. 

Sechon  1.  From  and  after  the  passage  of  this  act,  no  claim  shall  be  made  by 
the  state  to  any  land  as  swamp  or  overflowed,  nor  shall  the  same  be  segregated 
by  authority  of  the  state,  for  Avhich  pre-emption  or  homestead  patents  have  been 
issued  liy  the  United  States,  or  upon  which  there  are  settlers,  occupying  the 
land  in  good  faith,  who  have  filed  their  pre-emption  or  homestead  declaratory 
statement;  nor  shall  the  register  of  the  state  land  office  receive  any  application 
for  swamp  or  overflowed  land",  unless  the  apjDlication  be  accompanied  by  a 
certificate  from  the  register  of  the  United  States  laud  office  for  the  district  in 
which  the  land  is  situated,  that  there  is  no  pre-emption  or  homestead  filing  upon 
the  land  sought  to  be  purchased. 

Sf.''.  2.  This  act  shall  take  effect  and  be  in  force  from  and  after  its  passage. 

3444.  Jf  made  by  female,  what. 

Sec.  3444.  If  the  apjjlicant  is  a  female,  such  affidavit  must  also  show  that  she 
is  entitled  to  purchase  real  estate  in  her  own  name. 

3445.  Application,  to  tvhom  to  be  made. 

Sec  3445.  Any  person  desiring  to  purchase  lands  as  provided  in  section  3443 
of  this  code,  which  have  been  segregated  by  authority  of  the  United  States, 
but  which  have  not  been  sectionized  by  the  same  authority,  must  apply  to  the 
surveyor  of  the  county  in  which  the  land  is  situated  to  have  the  laud  which  he 
desires  to  purchase  surveyed,  and  a  certificate  of  such  survey  must  be  attached 
to  the  affida^•it  required  for  the  purchase  of  lands,  as  provided  in  said  section. 
All  surveys  required  of  county  surveyors  by  the  j^rovisions  of  this  section  ^uust 
conform  as  nearly  as  jiracticable  to  the  system  adopted  by  the  United  States 
for  the  survey  of  the  public  lauds.  [Amendment,  approved  March  28,  1874; 
A7n>'niline}d.'i  1873-4,  141;  took  effect  immediately.^^'' 

3446.  J'l-tUion  for  formation  of  reclamation  district. 

Sec.  344G.  Whenever  the  holders  of  title  or  evidence  of  title  representing  one 
half  or  more  of  any  body  of  swamp  and  overflowed,  salt  marsh,  or  tide  lands, 
KUKceiitible  of  one  mode  of  reclamation,  desire  to  reclaim  the  same,  they  may 
present  to  the  board  of  supervisors  of  the  county  in  which  the  lands  or  the 
greater  part  thereof  are  situated,  at  a  regular  meeting  of  the  board,  a  petition, 
setting  forth  that  they  propose  to  form  a  district  for  the  reclamation  of  the 
same,  u  doscrii)ti(m  of  the  lands  by  legal  subdivisions  or  other  boundaries,  the 
county  in  whicli  they  are  situated,  the  number  of  acres  in  the  proposed  district, 
and  in  each  tract,  with  the  names  (if  known)  of  the  owners  thereof,  and  desig- 
nating UH  uns(jld  any  lamhs  not  reduced  to  private  ownership.  [Amendment, 
approved  March  30,  1874;  Amendments  1873-4,  45;  took  effect  July  6,  1874.*"' 

(n)  Origlrisliwrllon:  ^h)  Originnl  Bfotion: 

Kkc.  ■■'■iU.  Any  i.«r-<.n  cl.mii.;;  to  piirchntio  Hwamp  Sec.  344r>.  Tlic  nffidavit  must  be  filetl  in  the  office  of 

tnd   <iv.-rfl.)w«-<l  ..r  ti<l<-  Inn.l^   hIk.v.-  |.,w   tide,  must  the  burveynr  of  tlie  ctniutv  In  which  the  laud,  or  the 

make  lilli.luvit  Hint  h.  ii.  n  c  lli/.  n  ..f  th.-  fnited  Stutc-H  greater  portion  thereof,  ie  bituate;  and  he  nuiBt,  except 

orhai«lil«<nilit  lnt.ntl(.n  t-i  l>e.  ■  111.  Ko. B  n-Kidcntof  the  when  surveys  have  already  been  made,  tBen  mako  » 

state,  of  lawful  UK'-,  that  hi-  rl<  -rih  to  iiunhase  liinds  survey  of  the  land. 

(deHcrihiuK  thciii)  uu.ler  th<-  la^  j.n.viiliiiK  I'T  th<-  Hale  [c)  'Original  section: 

of  Hwatii].  i.nd  ..v.-rftow<d  oud  lid.-  land:-,  that  he  does  8i:f.  34l(i.  Wlienever  the  holders  of  evidence  of  title 

nolknow  of  any  valldilalni  U>  til"- Hniii.  -,tii<  rlhau  his  representing  one  half  or  more  of  anybody  of  swamp 

own,  and.  if  tJie  land  is  swamp  and  ov.rlli^wed,  that  and  oveillowed,  salt  marsh  and  tide  lands,  susceptible 

there  are  no  settlers  thereon,  or  If  they  are.  that  the  of  one  mode  of  reclamation,   desire   to  reclaim   the 

lADd  has  been  segregated  more  than  six  moutua.  same,  they  may  present  to  the  board  of  supervisors  of 

418 


PROPEKTY  OF  STATE.  3447-3451 

3447.  Affidavit  and  publicaiion. 

Sec.  3447.  The  petition  must  be  verified  by  the  affidavit  of  one  of  the  peti- 
tioners, and  must  be  published  for  four  weeks  next  preceding'  tlio  liearing' 
thereof,  in  some  newspaper  published  in  the  county  in  which  the  lands  are  sit- 
uated; or,  if  there  is  no  newspaper  published  in  the  county,  then  it  must  be 
published  in  some  newspaper  having-  a  general  circulation  in  the  county,  and 
an  affidavit  of  publication  must  be  filed  with  such  petition. 

An  Act  relative  to  the  powers  of  the  boards  of  supervisors  of  the  counties  of  Yolo  and 

Solano. 

Approved  March  25,  187-t;  1873-4,  C02. 

Powers  of  supei'visors  in  Yolo  and  Solano  counties. 

Section  1.  The  boards  of  supervisors,  respectively,  of  the  counties  of  Yolo 
and  Solano,  shall  have  power  to  approve  any  petition  presented  pursuant  to 
sections  thirty-four  hundred  and  forty-six  and  thirty-four  hundred  and  forty- 
seven  of  the  Political  Code,  whether  the  lands  described  in  the  j)etition  form  a 
part  of  another  district  or  not. 
Liability. 

Sec  2.  The  district  so  formed  shall  be  liable  for  its  proportion  of  an}'  out- 
standing- indebtedness  against  any  swamp  land  district  from  which  new  district 
is  taken. 
Code. 

Sec.  8.  Such  new  district  shall  proceed  in  its  organization  and  acts  of  recla- 
mation according  to  the  provisions  of  the  Political  Code. 

Sec.  4.  This  act  shall  take  efl^ct  immediately. 

3448.  When  the  district  is  situated  parily  in  different  counties. 

Sec.  3448.  "When  a  district  is  situated  partly  in  different  counties  the  trustees 
must,  after  the  petition  has  been  granted,  forward  a  copy  thereof  to  the  clerk 
of  the  board  of  supervisors  of  each  of  the  counties  in  which  any  portion  of  the 
district  may  lie,  and  the  board  to  which  the  same  is  forwarded  must  not  allow 
another  district  to  be  formed  within  such  district,  unless  with  the  consent  of 
the  trustees  thereof. 

3449.  Proceedings  on  appeal  of  petition. 

Sec.  3449.  If  the  board  of  supervisors  find,  on  the  hearing  of  the  petition, 
that  its  statements  are  correct,  they  must  make  an  order  approving  the  same. 
If  it  be  shown  that  any  land  has  been  improperly  included  in  or  excepted  from 
the  proposed  district,  they  must  reform  the  district  in  such  respects  in  their 
order.  The  order  of  approval  must  be  indorsed  on  or  attached  to  the  petition, 
and  be  signed  by  the  president  and  attested  by  the  clerk  of  the  board.  [Amend- 
ment,  approved  March  30,  1874;  Amendments  1873-4,  45;  took  effect  July  6, 
1874.^''> 

3450.  Petition,  when  to  he  recorded. 

Sec  3450.  The  petition  must  then  be  recorded  by  the  county  recorder  in  a 
book  kept  for  the  purpose  of  recording  papers  relating  to  reclamations,  and  a 
certified  copy  thereof  forwarded  to  the  register. 

3451.  Duty  of  register  on  receipt  of  copy. 

Sec  3451.  The  register  must  thereupon  forward  to  tlie  county  treasurer  a 
statement  showing  the  names  of  purchasers  of  land  in  the  district,  who  have 

the  county  in  which  the  lands,  or  the  greater  portion  (a)  Original  sei'tion: 

thereof,   are    situated,   at  a   regular  meeting   of    the  Sec.  ;)449.  If  the  board  of  Bupprvisors  find  upon  the 

board,  a  petition  setting  forth  that  they  desire  to  adopt  hearing  of  the  ii<  tition  tliat  tlic  statements  are  correct, 

measures  to  reclaim  the  same,  the  description  of  the  and  that  no  land  is  improperly  included  in  orexcepted 

lands  by  legal  subdivisions,  the  quantity  snld,  and  from  the  district,  they  must  note  their  approval  on  the 

the  quantity  remaining  unsold,  the  number  of  acres  petition,  whicli  approval  must  be  signed  by  the  presi- 

in  the  whole  district,  and  tlie  number  of  acres  in  each  dent  and  attested  by  the  clerk. 

tract  sold,  with  the  names  (if  known)  of  the  owners 

thereof. 

419 


3451-3457  POLITICAL  CODE. 

paiil  in   full  therefor.      [Amendment,  approved  2Iarch  30,   1874;    Amendments 
1873-4,  4G;  took  effect  July  G,  1874.^"" 

3452.  DiMrkf  Inj-Iavs  and  tnn'tees. 

Si;c.  3452.  After  the  approval  of  the  petition,  the  petitioners,  or  a  majority 
of  them,  may  make  by-laws  for  the  management  of  the  district,  and  must  elect 
three  pei-sons  o^vninJ,^  land  in  the  district,  to  act  as  a  board  of  trustees  thereof, 
wl)o  shall  kec}!  their  office  in  the  district  or  as  near  as  practicable  for  the  trans- 
action of  all  laisiness  pertaining  to  the  reclamation  of  the  distiict,  and  their 
books  and  papers  shall  be  opened  to  inspection  by  any  one  person  interested  at 
all  times.  [Amendment,  approved  March  30,  1874;  Amendments  1873-4,  4G;  took 
errtct  July  6,  1874.*'" 

3453.  Jiy-laivs  must  he  signed  and  recorded. 

Skc.  3453.  The  by-laws  thus  adopted  must  be  signed  by  the  holders  of  cer- 
titicates  of  purchase  or  patents  representing  at  least  one  half  of  the  laud  so  to 
be  reclaimed  or  benetited,  and  be  recorded  by  the  county  recorder  in  the  same 
book  and  immediately  following  the  petition. 

3454.  Poxrers  of  iru.^tees. 

Sec.  3454.  The  board  thus  formed  have  power  to  elect  one  of  their  number 
president  thereof,  and  to  employ  engineers  to  survey,  plan,  locate,  and  estimate 
the  cost  of  the  work  necessary  for  reclamation,  and  the  land  needed  for  right  of 
way,  including  drains,  canals,  sluices,  water  gates,  embankments,  and  material 
for  coustniction,  and  to  construct,  maintain,  and  keep  in  repair  all  works  nec- 
essary to  the  object  in  view. 

3455.  Board  of  trustees  to  report  plans,  etc. 

Sec.  3455.  The  board  of  trustees  must  report  to  the  board  of  supervisors  of 
the  county,  or,  if  the  district  is  in  more  than  one  county,  then  to  the  board  of 
suj>ervisoi-s  in  each  county  in  which  the  district  is  situated,  the  plans  of  the 
work  and  estimates  of  the  cost,  together  with  estimates  of  the  incidental  ex- 
]i('nses  of  superintendence,  repairs,  etc. 

3456.  Commissionei's  to  assess  charges  for  reclamation  purjjoses  in  coin. 

Slo.  345G.  The  board  by  which  the  district  was  formed  must  appoint  three 
commissioners,  di.-siuterested  persons,  resident  of  the  county  in  which  the  dis- 
trict or  some  jjart  thereof  is  situated,  who  must  view  and  assess  upon  the  lands 
situated  within  the  district  a  charge  proporiiouate  to  the  whole  expense  and  to 
tlio  benetits  which  will  result  from  such  works,  and  estim^ated  in  gold  and  silver 
voiu  of  the  United  States.  The  same  must  be  collected  and  paid  into  the 
county  treasury  as  hereinafter  provided,  and  be  placed  by  the  treasurer  to  the 
credit  of  the  district,  and  paid  out  for  the  work  of  reclamation  upon  the  war- 
rants of  the  trustees,  approved  by  the  board  of  supervisors  of  the  county. 
[Am'-ndmenl,  approved  March  30,  1874;  Amendments  1873-4,  4G;  took  effect  July 
G,  1874."' 

3457.  WarrantH,  hov  presented. 

Si .-.  3457.  The  warrants  drawn  by  the  trustees  must,  after  they  are  approved 
1a-  the  Ijoard  of  supervipoi-s,  be  presented  to  the  treasurer  of  the  county,  and  if 
they  are  not  i)aid  on  presentation,  such  indorsement  must  be  made  thereon, 
and  they  must  be  registered  and  bear  interest  from  date  of  presentation,  pro- 

(a)  Th«-  oriKlntl  wjcllon bad  the  wordu  ••  all  owiirrs "  bcr,  by  Uic  votes  or  consent  of  the  boldcrs  of  certifi- 

iwtt.Hil  ..f  ••  i.unhhM-ni.    and'TortLi-lrlandB-iuBtond  ciit<K  of  p.mhaHf  or  piiteiits  repnsentint;  at  least  one 

..}  \'J\         1        ^i  h""'  *!"-■  '""•l  "Ought  to  be  reclaimed,  to  act  as  a  board 

(M  OrlKUial  w-ftlon:  „f  trustees  to  niauage  the  same. 

hKC.  ..i..s.  Aft.r  Uit  BiM  •  ■    petition,  the  (.)  The  original  section  instead  of  "  and  estimated 

petitl'.n.rrji.a.v  make  mi,  )■  .  j  ,i,.,.i„  neces-  In  gold  and  silver  ((.in  of  the  United  States.   The  same" 

sarj-  t«i  e«. ,     th(    work  ol  and  keep  the  hail  the  words  •'  which  charge." 

same  In  repair,  and  Ihey  nil).  I'll!  t  11, rt(  ol  theiruuni- 

420 


PROPERTY  OF  STATE.  3457-34G4 

vided  warraBts  heretofore  issued  shall  bear  no  interest.     \Av1endme71t,  approved 
March  30,  1874;  Amendments  1873-4,  47;  took  effect  Jubj  G,  1874.<'> 

3458.  District  situated  partly  in  different  counties — Cliarges,  ivhere  paid. 

Skc.  3458.  If  a  district  is  situated  partly  iu  different  counties  the  charge  must 
be  paid  into  the  ti*easury  of  the  county  in  which  the  particular  tract  may  be 
situated, 

3459.  Additional  may  be  assessed. 

Sec.  3459.  If  the  original  assessment  is  insufficient  to  provide  for  the  com- 
plete reclamation  of  the  lands  of  the  district,  or  if  further  assessments  are  from 
time  to  time  required  to  provide  for  the  protection,  maintenance,  and  repair  of 
the  reclamation  works,  the  trustees  must  present  to  the  board  of  supervisors  by 
which  the  district  was  formed,  a  statement  of  the  work  done,  or  to  be  done, 
and  its  estimated  cost,  and  the  board  must  make  an  order  directing  the  com- 
missioners who  made  the  original  assessment,  or  other  commissioners,  to  be 
named  in  such  order,  to  assess  the  amount  of  such  estimated  cost  as  a  charge 
uj)on  the  lands  within  the  district,  which  assessment  must  be  made  and  collected 
in  the  same  manner  as  the  original  assessment.  \Ai7iendment,  approved  March 
30,  1874;  Amendments  1873-4,  47;  took  effect  July  6,  1874."'> 

3460.  Commissioners  to  make  assessment  lists. 

Sec.  3460.  The  commissioners  appointed  by  the  board  of  supervisors  must 
make  a  list  of  the  charges  assessed  against  each  tract  of  land. 

3461.  Form  of  list. 

Sec.  3461.  The  list  must  contain: 

1.  A  description  by  legal  subdivisions,  swamp  land  surveys,  or  natural 
boundaiies  of  each  tract  assessed; 

2.  The  number  of  acres  in  each  tract; 

3.  The  names  of  the  owners  of  each  tract,  if  known;  and  if  unknown,  that 
fact; 

4.  The  amount  of  the  charge  assessed  against  each  tract.  [Amendment, 
approved  March  30,  1874;  Amendments  1873-4,  49;  took  effect  July  6,  1874.^"* 

3462.  Lists,  how  and  where  filed. 

Sec.  3462.  The  list  so  made  must  be  filed  with  the  treasurer  of  the  county, 
or  if  the  district  is  situated  iu  different  counties,  then  the  original  list  must  be 
filed  in  the  county  where  the  petition  was  filed,  and  copies  thereof,  certified  by 
the  commissioners,  must  be  filed  with  the  treasurer  of  each  of  the  other  coun- 
ties. [Amendment,  approved  Ma7xh  30,  1874  ;  Amendments  1873-4,  47;  took 
effect  July  6,  1874.<*' 

3463.  Lien  acquired  by  filing  lists. 

Sec.  3463.  From  and  after  the  filing  of  the  list,  or  certified  copy  thereof,  the 
charges  assessed  upon  any  tract  of  land  within  the  county  constitute  a  lien 
thereon. 

3464.  Credit  to  be  given  to  owners  of  land. 

Sec.  3464.  AVhen  the  list,  or  a  certified  copy  thereof,  is  filed,  the  treasurer 
must  credit  thereon,  to  each  purchaser  who  has  paid  in  full  for  his  land,  eighty 
cents  per  acre,  less  any  amount  chargeable  against  him,  and  must  transfer  the 

(a)  The  original  Bection  did  not  have  the  words  (d)  The  original  section  had  the  word  "county" 
"and  bear  interest  from  date  of  i>resentatiou.  pro-  before  the  first  "treasurer,"  and  "partly"  before 
vided  warrants  heretofore  issued  shall  bear  no  in-  "situated."  Instead  of  "  where  the  petition  was  filed" 
terest."  it  had  the  words  "  first  in  order  under  alphabetical  ar- 

(b)  The   original  section  did  not  have  the  words     raugement." 
"done,  or." 

(c)  The  original  section  did  not  have  the  woinIs 
"  swamp  land  surveys." 

421 


34G4-34G7  POLITICAL  CODE. 

amount  to  the  credit  of  the  district.     [Amendmrnf,  approved  3Iarch  30,  1874; 
Ameudmenis  1873-4,  48;  luoJc  efect  Juhj  G,  1874.*''' 

3465.  Payment,  hmv  mode. 

Skc.  34G5.  The  lists  thus  prepared  and  filed  must  remain  in  the  office  of  the 
treasurer  for  thirty  days,  or  longer,  if  ordered  by  the  hoard  of  trustees;  and 
during  the  time  they  so  remain  any  person  may  pay  the  amount  of  the  charge 
assessed  against  any  tract  of  land  to  the  treasurer,  in  gold  coin  of  the  United 
States,  or  in  warrants  of  the  district  drawn  by  order  of  the  trustees  thereof, 
and  ai>i)rovcd  by  the  board  of  sui)crvisors  of  the  county.  Where  payment  is 
made  in  the  wairants  of  the  district,  legal  interest  must  be  computed  thereon 
from  the  date  thereof  to  the  time  of  such  payment,  when  said  warrants  must 
be  surrendered  to  the  treasurer  and  by  him  canceled.  [Ainendment,  approved 
April's,  187G;  Ameiidinents  1815-6,  57;  took  effect  from  pasaage}'^^ 

3466.  D'UiKpient  charges,  hoic  collected. 

Skc.  34GG.  If,  at  the  end  of  thirty  days,  or  of  the  longer  time  fixed  by  the 
trustees,  all  of  the  assessments  have  not  been  paid,  the  treasurer  must  return 
the  lists  to  the  district  attorney,  who  must  commence  actions  for  the  collec- 
tion of  such  delinquent  assessments  with  the  interest  thereon  from  the  time 
the  lists  were  returned  to  him,  and  costs,  and  for  the  enforcement  of  the  lien 
on  the  land  assessed,  in  the  district  court  of  the  county  in  which  the  same  is 
situated,  against  the  person  to  whom  the  same  is  assessed,  and  if  assessed  to 
unknown  owners,  then  against  the  real  owners,  and  all  persons  having  or  claim- 
ing any  interest  therein,  by  fictitious  names.  Service  of  complaint  and  sum- 
mons in  such  actions  may  be  made  either  in  the  manner  prescribed  by  the  Code 
of  Civil  Procedure,  or  by  posting  a  cojiy  of  the  summons  at  the  court-house 
door,  and  publishing  the  same  once  a  week  for  four  successive  weeks,  in  a  news- 
paper published  in  the  count}',  and  such  jDOsting  and  jjublication  is  equivalent 
to  pergonal  service  on  all  persdns  having,  or  claiming  any  right,  title  or  interest 
in  the  land  assessed,  whether  named  as  a  party  in  such  action  or  not.  Proof 
of  sucli  posting  and  publication  must  be  made  by  the  certificate  of  the  sheriff, 
or  affidavit  of  the  district  attorney.  In  case  the  service  be  made  by  posting 
and  publication,  the  defendant  or  any  person  claiming  any  interest  in  the  land 
assessed,  may  appear  and  answer  the  complaint  within  forty  days  after  the 
expiration  of  the  four  weeks  of  posting  and  publication.  Assessments  on 
sevtral  tracts  may  be  included  in  the  same  action,  if  listed  to  the  same  person. 
In  such  action  the  court  may  decree  and  adjudge  a  lien  against  the  tracts 
atwcKsed,  and  order  them  to  be  sold  on  execution  or  decree,  as  in  other  cases 
of  gale  of  real  estate.  The  judgment  or  decree  must  direct  that  the  sale  be 
made  for  gold  and  silver  coin  of  the  United  States.  The  district  attorney  nuist 
pay  the  moneys  collected  to  the  county  treasurer,  who  must  place  thd  same  to 
the  credit  of  the  district.  [ArnendmenI,  approved  2Iarch  30,  1874;  Amendments 
1873  4,  48;  look  effect  July  6,  1874.*'=> 

3467.  Work  uf  reclamation  to  be  done  under  direction  of  trustees. 

Skc.  34G7.  Tlie  work  necessary  for  reclamation  must  be  executed  under  the 
direction  and  in  the  manner  prescribed  by  tlie  board  of  trustees. 

(a)  OrtKJnj1iM<ctlon:  theofflre  of  the  trenBuror  for  thirty  davs.  or  longer,  If 

hi:r    KM.  Winn  thi-  Imt  or  n  r.  rtili.  .1  roj-y  thr-rfof  Ik  ordered  by  the  board  of  triiBtecB,  and  dnriiiK  the  time 

•  ..,»",'""''.'''.  "'""'"■'■'''*  '•"'.''  "^■'"■'"  who   haH  they   so  remain   any  pernon   may  pay  tlie  amount  of 

tiiKi   I.,  fnll  t..r  hlM  i«f,^  with  elKhty  eentu  per  arre.  the  charge  ugaiUKt  any  tract  to  the  treasurer,  without 

h>-  ■                   -              .         >  til.  r.  (Ulster  of  the  land  cost. 

''"■                                                :  w-.ti<.nthlrty.<,neof'An  (c)  The    original    section    instead    of   "commence 

^'                                             ..«eiiieiit  and  hale  of  lands  actions  "  had  the  words  "  proceed  at  once  against  all 

"!  '                           ,'    •■',"",      "I'proved    March    twenty-  delinfjuents  bv  civil  action."     It  did  not  have  any  part 

"*';'                          hiindn-d  and  hlxly-elght.  of  the  sr.tion  as  amended,  commen<ing  with  the  words 

'  ' ', ''i" ' .,  ,  "  ""i^  f"*"  tli«  enforcement  of  the  lieu." 

bj^.  OK  ..   1  li':   liKt«  thuii  prepared  must  remain  In 

422 


PEOPERTY  OF  STATE.  34G8-3475 

3468.  Accounts  to  he  kept  open  to  inspection. 

Sec.  34G8.  The  board  must  keep  accurate  accounts  of  all  expenditures,  which 
accounts  and  all  contracts  that  may  be  made  by  them,  are  open  to  the  inspec- 
tion of  the  board  of  supervisors  and  every  person  interested. 

3469.  Subsequent  purchasers  governed  by  by-laws. 

Sec.  3469.  The  purchaser  of  any  tract  of  land  which  may  be  unsold  in  any 
reclamation  district  at  the  date  of  filing  of  the  by-laws,  takes  the  same  subject 
to  all  the  provisions  of  such  by-laws,  and  to  the  charges  assessed  in  pursuance 
thereof. 

3470.  Bights  of  purchasers. 

Sec  3470.  Such  purchaser  has  all  the  rights  and  privileges  enjoyed  by  the 
original  signers  of  the  bj'-laws,  if  he  pays  into  the  county  treasury  twenty  per 
cent,  of  the  principal,  one  year's  interest  on  the  remaining  eighty  per  cent.,  and 
any  charges  assessed  against  the  land  so  purchased  for  the  cost  and  expense  of 
reclamation,  with  interest  thereon  from  the  date  such  charges  became  due. 

3471.  ProjDcrty  may  be  condemned  for  reclamation  purposes. 

Sec.  3471.  The  trustees  of  any  reclamation  district  in  which  the  by-laws  have 
been  filed,  may  acquire  rights  of  way  for  canals,  drains,  embankments,  and  other 
work  necessary  to  the  reclamation,  and  may  take  materials  for  the  construction, 
maintenance  and  repair  thereof,  from  lands  outside  of  as  well  as  within  the 
limits  of  the  district;  and  if  the  trustees  cannot  procure  the  consent  of  the 
owner  of  the  lands  or  material  needed,  they,  or  the  president  acting  in  their 
behalf,  may  proceed  under  the  provisions  of  Title  VII,  Part  III,  of  the  Code 
of  Civil  Procedure,  for  the  condemnation  thereof.     [See  post,  11,237.] 

3472.  Oivners  may  reclaim  without  intervention  of  trustees. 

Sec.  3472.  Whenever  any  district,  susceptible  of  one  mode  of  reclamation,  is 
entirely  owned  by  parties  who  desire  to  reclaim  the  same  and  to  manage  the 
reclamation  without  the  inteiwention  of  trustees  or  the  establishment  of  by-laws, 
they  may  file  the  petition  provided  for  in  sections  3446  and  3447,  and  must 
state  therein  that  they  intend  to  undertake  the  reclamation  on  their  own  respon- 
sibility. 

3473.  Their  powers  and  duties. 

Sec  3473.  If  the  petition  is  granted,  the  owners  of  the  lands  have  all  the 
rights,  immunities,  and  jirivileges  granted  to  boards  of  tiiistees;  and  in  all 
proceedings  the  names  of  the  owners  may  be  used  instead  of  the  names  of 
trustees. 

3474.  When  works  of  reclamation  are  in  progress,  interest  to  cease. 

Sec  3474.  Whenever  the  supervisors  of  any  county  in  which  any  reclamation 
district  has  been  formed  certify  to  the  register  that  works  of  reclamation  ore  in 
progress  upon  a  plan  and  in  conformity  with  the  requirements  hereinbefore 
provided,  the  payment  of  interest  by  purchasers  in  such  districts  is  suspended; 
but  if  the  works  are  not  completed  and  accepted  within  four  years  from  the 
date  of  the  filing  of  the  petition,  then  interest  for  the  whole  time  must  be 
charged  and  collected  by  the  register. 

3475.  Contract  by  board  of  supervisors. 

Sec  3475.  The  supervisors  shall  have  power,  on  application  of  the  trustees 
or  owners  of  any  swamp  land  district,  to  approve  and  let  any  contract  to  the 
lowest  responsible  bidder,  and  order  the  county  treasurer  to  pay  for  the  same 
out  of  the  funds  of  the  district.  [Amendment,  approved  Ifarch  30,  1874;  Amend- 
ments 1873-4,  49;  took  effect  July  6,  1874.^''' 

(a)   Original  section-  have  been  no  trustees  for  the  district,  must  file  in  the 

Sec.  S47.5.  After  the  work  of  reclamation  is  com-     office  of  the  county  recorder  of  the  county  in  which 

pleted  the  trustees,  or  the  owBers  of  the  land,  if  there     the  original  petition  was  filed,  a  sworn  statement  of 

423 


34TG-34S0  POLITICAL  CODE. 

3476.   Completion  of  reclamation  to  be  certified  to  register. 

Sec.  3470.  "Wheuever  the  trustees,  or  owners  of  laud,  if  there  be  no  trustees, 
certify  under  oath  to  the  board  of  sui:)ervisors  who  formed  the  distiict,  and  show 
to  theii-  satisfaction  that  the  works  of  reclamation  are  completed,  or  that  two 
dollars  per  acre  in  gold  coin  has  been  expended  on  the  works  of  reclamation, 
the  board  of  supervisors  must  thereupon  certify  such  facts  to  the  register. 
[Amemhmnxt,  approved  Jlardi  30,  1874;  AmendmeiUs  1873-4,  50;  took  effect  July 
6,  1874.**> 
34T7.  If  lands  have  been  reclaimed,  jiatents  to  isme. 

Sec.  3477.  The  register  must  thereupon  credit  each  purchaser  in  the  district 
with  payment  in  full  for  such  lands,  and  the  purchasers  are  entitled  to  patents 
therefor,  and  the  register  must  forward  to  the  treasurer  of  the  county  in  which 
any  part  of  the  district  is  situated,  a  statement,  showing  the  amount  paid  by 
each  jnirchaser  in  the  district,  including  interest,  and  the  county  treasurer, 
after  deducting  all  amounts  chargeable  against  the  lands  in  said  district,  by 
reason  of  moneys  drawn  from  the  swamp  land  fund  of  the  county,  must 
divide  the  balance  pro  rata  amongst  the,original  purchasers  of  land  in  the  dis- 
trict, or  their  assigns,  and  must  pay  to  each  purchaser  or  his  assigns,  on  de- 
mand, the  amount  found  to  be  due  to  him  from  such  computation,  out  of  the 
moneys  in  his  hands  to  the  credit  of  the  swamp  land  fund  of  the  county. 
Neither  this  nor  the  jireceding  section  apj)lies  to  districts  having  outstanding 
indebtedness  reiiresented  by  controller's  warrants  drawn  on  the  state  treasury, 
until  all  such  warrants  are  fully  paid.  [Ainendinent,  approved  Ilarch  30,  1874; 
Amendments  1873-4,  50;  took  effect  July  G,  1874.'"^ 

3478.  Old  districts  may  reorganize  under  this  chapter. 

Sec.  3478.  Districts  formed  under  laws  in  force  prior  to  May  twenty-eighth, 
eighteen  hundred  and  sixty-eight,  may  reorganize  under  the  provisions  of  this 
chapter. 

3479.  Trustees  may  compromise  indebtedness  of,  and  levy  tax  to  pay  the  same. 
Sec  3479.  But  if  such  districts  are  in  debt,  the  trustees  thereof  have  no 

power  to  impair  or  destroy  any  indebtedness  of  the  district  without  the  consent 
of  the  creditors,  but  may  make  any  arrangement  with  the  creditors  for  the  sur- 
render of  such  indebtedness  at  less  than  par,  and,  if  authorized  by  the  by-laws, 
may  assess  a  charge  on  the  property  of  the  district  for  the  payment  thereof. 

3480.  JJonds  and  ivarranis  redeemed  may  be  used  by  trustees  in  purchase  of  land 

in  dii<trict. 
Sec.  3480.  If  the  trustees  of  any  district  referred  to  in  the  preceding  section 
redeem  the  bonds  and  warrants  of  such  district,  they  may  select  any  unsold 
lands  therein,  and  pay  for  the  same  with  such  bonds  or  warrants  at  par,  and 
ujion  such  jjayment  the  register  must  issue  to  them  certificates  of  purchase,  and 
when  t]je  lands  have  been  reclaimed  they  are  entitled  to  patents  therefor. 
Such  lands  may  be  sold  by  the  trustees;  and  if  sold,  the  proceeds  must  be  paid 
into  the  fund  of  the  disti'ict. 

the  fact,  ana  tUe  rcronlf-r  luvmt  forward  a  rertlfled  copy  ment  must  be  by  him  recorded,  and  a  certified  copy 

tlK-rtxif  t<.  till-  n((lMt<r;  and  the  mipirvlKors  iiiuKt  order  thereof  forwiirded  to  the  register. 

the  treniinrtr  Uj  pay  over  to  tlie  truhU-iH  or  owners  any  (b)  Original  section: 

in..ii.jh  lir-  may  have  credited  to  purcliusers  on  fuU  Sec.  :U77.  Tlie  register  must  thereupon  credit  each 

payiuei/U.  purchaser  In   th<-  dinti-ict  with  payment  in   fuH  for 

I'i)   t>rlginal  sfictlon.  Kuch  hinds,  and  the  purchasers  are  entitled  to  patents 

Skc.  aiTt;.  Time  yearH  after  niln«  the  statement  re-  therefur;  and   tlie  register  must  forward  to  the  treas- 

ferred  to  In  the  prec.-dlnK  M-ctl-m  the  board  of  super-  uri-r  of  the  county  in  which  auv  portion  of  the  district 

vlwirhof  thecounly  In  wlilch  the  (DMrtcl.  or  the  lartter  may  be  situated  a   statiiiient  showing  the  amount  of 

portion  Ih.r... fin  Hituuted.  niiiht.up<in  the  appli.atidu  nioni'y   paid   into  tlie   treasury  by  each   purcluiser  of 

of  the  tnihteeH,  or  the  owners  of  the-  land.  11  there  are  lanil  in  such  district,  and  the  amount  to  bo  credited  to 

no  trustees,  appoint  three  conimlht-l<.ii<.rs.  who  must  tin- purchasers  and  paid  over  to  the  trustees,  as  herein- 

exaidlne  the  work  .lone  and  the  lands  embrace.!  in  the  before  provided,  and  must  order  the  balance  paid  over 

district;  and  if  they  Hnd  tliat  tin-  lutids  have  been  re-  to  such   punhasers.    The  statement  of  the  register, 

clalnnd  they  nuiht  return  and  tile  with  the  county  re-  signed  by  the  purchasers,  ia  a  voucher  for  the  county 

cordcr  a  Kworu  stateuicut  to  that  effect,  which  Ktate-  treusurvr. 

424 


PEOPERTY  OF  STATE.  3481-3487 

3481.  Owners  of  lands  in  old  districts  may  have  their  lands  set  off  in  separate  dis- 

tricts. 
Sec.  3481.  If  the  holders  of  certificates  of  i^urchase  or  patents  for  lands 
■within  any  district  formed  prior  to  May  twenty-eighth,  eighteen  hundred  and 
sixty-eight,  and  in  which  the  lands  have  not  been  reclaimed,  desire  to  have  their 
lands  set  off  from  such  district,  they  must,  in  addition  to  the  i^etitiou  retjuired 
in  section  344G,  show  to  the  board  of  supervisors  that  theu.'  lands  are  capable  of 
an  independent  reclamation. 

3482.  Liability  of  new  district  for  proportion  of  old  indebtedness. 

Sec.  3482.  The  district  so  set  off  shall  be  liable  for  its  just  j)roportion  of  the 
legal  indebtedness  of  the  original  district  from  which  it  was  set  off,  when  the 
same  shall  have  been  ascertained  by  law.  [Amendment,  app>roved  March  16, 
1874;  Amendments  1873-4,  142;  took  effect  from  passage;  repealed  conflicting 
acts.'-"^ 

3483.  Districts,  how  designated. 

Sec.  3483.  All  districts  organized  under  this  chapter  must  have  a  state  num- 
ber, and  the  register,  upon  the  receipt  of  a  copy  of  a  petition,  must  number  the 
same,  and  send  their  nvunber  to  the  county  recorder  of  the  county  from  which 
the  copy  came,  and  the  recorder  must  number  the  petition  upon  record  in  like 
manner,  and  the  district  must  thereafter  be  known  and  designated  thereby. 
Districts  organized  before  May  twenty-eighth,  eighteen  hundred  and  sixty-eight, 
may  retain  their  number, 

3434.  In  Sacramento,  supervisors  may  employ  clerk. 

Sec  3484.  No  member  of  any  board  of  supervisors  or  any  clerk  of  such 
board  must  receive  compensation,  other  than  his  regular  salary' ,  for  services  per- 
formed under  this  chapter;  but  the  board  of  supervisors  of  Sacramento  county 
may  employ  a  clerk  to  attend  to  matters  pertaining  to  swamjD  lands,  and  pay 
such  clerk  by  orders  on  the  swamp  land  fund  of  the  district  for  which  work  is 
performed,  not  to  exceed  five  dollars  for  each  day  he  is  actually  engaged. 

3485.  Payment  on  lands  held  for  five  years,  when  to  be  made. 

Sec.  3485.  The  balance  of  the  principal  on  all  lands  in  districts  having  an 
outstanding  indebtedness,  which  have  been  sold  for  five  years,  is  j^ayable  at 
once;  and  on  all  lands  in  such  districts  which  have  been  sold  less  than  five  years, 
the  balance  is  payable  on  the  first  of  January  following  the  expiration  of  five 
years  from  the  date  of  sale. 

3486.  Occupants  of  land  on  banks  of  stream  liable  for  damages,  when. 

Sec.  3486.  Any  person  owning  or  occupying  lands  upon  the  banks  of  any 
stream  where  the  lands  lying  back  of  such  stream  are  lower  than  the  bank 
thereof,  is  responsible  for  all  damages  which  may  be  sustained  by  the  owners 
or  occupants  of  lower  lauds  by  reason  of  any  cut  or  embrasure  made  in  the 
bank  of  such  stream  by  the  owner  or  occupant  of  the  bank, 

3487.  Mitigation  of  damages. 

Sec.  3487,  If  such  cuts  were  made  for  the  purpose  of  irrigation,  and  head 
gates  and  culverts  have  been  made  which  competent  persons  consider  sufficient 
to  restrain  the  water,  and  where  great  diligence  has  been  made  to  prevent 
damage,  these  facts  may  be  pleaded  and  proved,  in  mitigation  of  damages. 

(a)  Original  section:  upon  the  payment  thcroof  the  lands  described  in  the 

Sec.  34^2.  If  the  dlBtrict  from  which  they  seek  to  be  petition  constitute  a  district,  and  are  subject  to  all  the 

set  off  is  not  in  debt,  then  the  lands  may  at  once  be  set  conditions  of  this  chapter.     The  amount  paid  by  the 

off;  but  if  the  district  has  an  outstanding  indebtedness,  petitioners  is  a  charge  against  the  district  so  formed, 

then  the  board  must  determine  what  proportion  of  the  and  must  be  collected  and  paid  the  same  as  moneys  tor 

debt  the  district  so  sought  to  be  set  off  should  pay;  and  reclamation. 

425 


3488-3490  POLITICAL  CODE. 

3488.  Cerlain  lands  excepted  from  the  provisions  of  Ms  chapter. 

Sll'.  3488.  All  swamj)  and  overtioAved,  salt  marsh,  and  tide  lands  within  one 
mile  of  the  state  prison  at  San  Quentiu,  within  the  city  and  county  of  San 
Francisco,  city  of  Oakland,  or  within  five  miles  of  the  corporate  limits  of  either, 
or  within  two  miles  of  any  incorporated  city  or  town,  are  excluded  from  the 
opei-ation  of  this  chapter.  The  lands  mentioned  and  described  in  an  act  to 
survey  and  dispose  of  certain  salt  marsh  and  tide  lands  belonging  to  the  state 
of  California,  approved  March  thirtieth,  eighteen  hundred  and  sixty-eight,  and 
in  the  act  supplementary  and  amendatory  thereto,  approved  April  first,  eighteen 
hundred  and  seventy,  must  be  disposed  of  as  in  such  acts  provided,  which  are 
hereby  continued  in  force. 

3489.  Districts  may  be  consolidated. 

Sy.c.  3489.  Two  or  more  contiguous  districts  may  be  consolidated  b}-  the 
written  concurrence  of  a  majority  in  acreage,  of  the  land  owners  of  such  dis- 
trict. An  agreement,  stating  the  terms  of  such  consolidation,  and  the  names 
of  the  ti-ustees  of  the  consolidated  district,  must  be  signed  by  the  trustees  of 
each  district,  or  a  majority  of  them,  and  be  recorded  in  the  recorder's  ofiSce  of 
the  county  in  Avhich  the  districts  are  situated.  A  ceiiified  copy  shall  be  sent 
to  the  register  of  the  land  office,  and  he  must  number  such  district  as  consoli- 
dated district  No.  — ,  and  send  the  number  to  the  county  recorder,  in  which 
the  districts  are  situated,  and  the  consolidated  district  must  thereafter  be  known 
and  designated  thereb}'.  [Neiv  section,  approved  March  30,  1874;  Amendments 
1873-4,  51;  took  effect  July  6,  1874. 

3490.  Injury  to  levee — Action — Parties. 

Sec.  3490.  Any  person  who  shall  cut,  injure  or  destroy  any  levee,  or  other 
works  of  reclamation  in  any  district,  is  responsible  for  all  damages  which  may 
be  occasioned  thereby  to  such  levee  Avorks;  and  an  action  therefor  must  be 
brought  in  the  district  court  of  the  county,  or  either  of  the  counties,  in  which 
such  levee  or  works  ai'e  situated,  in  the  names  of  the  trustees  of  the  district. 
If  tliere  be  no  trustees,  then  the  action  may  be  brought  in  the  name  of  any 
laud  owner  in  the  district.  The  amount  recovered  in  such  action  must  be  paid 
to  the  treasurer  of  the  county,  who  must  jilace  the  same  to  the  credit  of  the 
district.  [Sew  section,  approved  March  30,  1874;  Amendments  1873-4,  51;  took 
effect  July  G,  1874. 

An  .\ct  to  proviile  for  the  proiier  distribution,  in  the  several  county  treasuries,  of  funds 
arising  from  the  sale  of  swamp  lauds. 

Approved,  March  28,  1874;  1873-4,  770. 

Stcamp  land  fund. 

Skction  1.  "Whenever  hereafter  a  swamp  land  district  shall  be  organized,  and 
in  all  cases  where  districts  have  heretofore  been  organized,  the  board  of  super- 
vis«)i-s  of  each  county  in  whicli  any  portion  of  the  lands  of  such  district  are 
located,  sljall,  upon  the  application  of  any  party  interested,  direct  the  auditor 
and  treasurer  to  set  apart  from  the  swamp  land  fund,  in  the  county  treasury, 
all  the  money  wliich  has  been  or  shall  hereafter  be  received  in  payment  of  prin- 
cipal and  interest  on  such  lands,  as  a  fund  to  the  credit  of  such  district,  except 
sucli  ijioney  as  may  have  ])reviously  been  expended  from  the  swamp  land  fund 
for  the  benefit  of  land  witliin  the  district. 
How  used. 

Si:r.  2.  The  mouf  y  in  tlic  district  fund,  created  by  section  one  of  this  act, 
shall  ]>(:  imul  out  <jnly  for  tlie  purpose  of  reclaiming  said  land,  or  to  the  owners 
of  such  land  after  reclamation,  as  now  provided  by  law;  and  in  all  cases  where 
moneys  paid  in  upon  such  lands  have  been  diverted  to  the  use  and  benefit  of 
other  lands,  they  shall  be  replaced  out  of  the  first  receipt  from  the  land  so 

426 


PEOPERTY  OF  STATE.  3490-3497 

benefited.  In  all  cases  where  any  expense  has  been  paid  from  the  county 
swamp  land  fund  for  attorneys'  fees  in  the  examination  of  the  character  of  any 
land,  in  any  reclamation  district,  or  when  any  expense  has  been  paid  from  the 
county  swamj)  land  fund  i)ertaining  to  the  land  in  said  district,  the  county 
treasurer  shall  deduct  said  amount  from  the  amount  otherwise  found  due  to  the 
land  for  which  said  expense  was  paid,  and  onlj'  return  to  the  owner  of  the  land 
so  much  of  the  money  paid  into  the  treasury  on  said  land  as  shall  remain  after 
deducting  the  said  amount  paid  for  expense  pertaining  to  said  land. 

Sec.  3.  This  act  shall  not  apply  to  districts  upon  which  controllers'  wan-ants 
are  outstanding,  until  after  all  of  such  warrants  are  paid. 

ARTICLE  III. 

SCHOOL    LANDS. 

3494.  School  lands,  price  and  payments. 

Sec  3494.  The  unsold  portion  of  the  five  hundred  thousand  acres  granted  to 
the  state  for  school  j^urposes,  the  sixteenth  and  thirty-sixth  sections  and  lands 
selected  in  lieu  thereof,  must  be  sold  at  the  rate  of  one  dollar  and  twenty-five 
cents  per  acre,  in  gold  coin,  payable,  twenty  per  cent,  of  the  principal  within 
fifty  days  from  the  date  of  the  certificate  of  location  issued  to  the  purchaser, 
the  balance,  bearing  interest  at  the  rate  of  ten  j^er  cent,  per  annum  in  advance, 
is  due  and  paj^able  within  one  year  after  the  passage  of  any  act  by  the  legisla- 
ture requiring  such  payment,  or  before  if  desired  by  the  purchaser. 

3495.  Affidavit  on  application  to  jyurchase  sixteenth  or  thirty-sixth  section. 

Sec.  3495.  Any  person  desiring  to  purchase  any  portion  not  less  than  the 
smallest  legal  subdivision  of  a  sixteenth  or  a  thirty-sixth  section  of  any  town- 
ship which  has  been  surveyed  by  the  United  States,  must  make  an  affidavit  that 
he  is  a  citizen  of  the  United  States,  or  has  filed  his  intention  to  become  so,  a 
resident  of  the  state,  of  lawful  age;  that  he  desires  to  purchase  such  lands 
(describing  the  same  by  legal  subdivisions)  under  the  provisions  of  this  title; 
that  he  has  not  entered  any  portion  of  any  sixteenth  or  tbirty-sixth  section 
which,  together  with  that  now  sought  to  be  purchased,  exceeds  three  hundred 
and  twenty  acres;  that  there  is  no  occui^ation  of  such  lands  adverse  to  any  that 
he  has,  or  if  there  is  an  adverse  occupation,  then  the  affidavit  must  show  that 
the  township  has  been  sectionized  three  months,  and  that  the  adverse  occupant 
(giving  his  name)  has  been  in  such  occupation  for  more  than  sixty  days. 

3496.  Affidavit,  wheyi  applicant  is  female. 

Sec  3496.  If  the  applicant  is  a  female,  the  affidavit  must  show  that  she  is 
entitled  to  purchase  and  hold  real  estate  in  her  own  name. 

3497.  OccujMnts  protected. 

Sec  3497.  Every  occupant  of  a  sixteenth  or  thirty-sixth  section  is  jirotected 
in  his  occupancy  for  three  months  after  the  township  has  been  sectionized;  and 
any  person  settling  uj^on  a  sixteenth  or  thirty-sixth  section  after  a  township  has 
been  sectionized  has  sixty  days  after  such  settlement  in  which  to  file  the  appli- 
cation required  in  the  preceding  section. 

An  Act  to  protect  bona  fide  settlers  upon  public  lands. 

Approved  March  23,  1874;  :873-4,  5i3. 

Bona  fide  settlers  preferred  purchasers. 

Section  1.  Bona  fide  settlers  upon  any  sixteenth  or  thirty-sixth  section,  which 
at  the  time  of  such  settlement  was  embraced  within  any  survey  made  under 
claim  or  color  of  any  Spanish  or  Mexican  grant,  but  which  has  since  been  or 
hereafter  may  be  restored  to  the  public  domain  by  the  proper  officers  of  the 

427 


3497-3503  POLITICAL  CODE. 

government  of  tlie  United  States,  shaU  be  preferred  purchasers  for  the  lands  so 
settled  upon  by  them  to  the  lines  of  their  actual  possession,  and  in  accordance 
with  the  yenenU  system  of  government  surveys,  and  not  exceeding-  three  hun- 
dred and  twenty  acres;  and  all  applications  made  by  such  settlers  to  purchase 
said  lands  from'  the  state  within  one  year  from  the  date  of  such  restoration,  are 
hereby  declared  to  entitle  said  settlers  to  become  preferred  purchasers  for  the 
lands  so  held  as  aforesaid,  in  the  same  manner  and  to  the  same  extent  as  if  made 
within  the  sixty  days,  as  now  provided  for  by  law;  and  said  sixty  days'  prefer- 
ment is  hereby  extended  to,  and  declared  to  be,  one  year  from  the  date  of  said 
restoration;  and  all  such  applications  made  within  one  year  from  the  date  of 
B:iid  restoration  shall  be  held  and  deemed  as  valid  and  binding  as  if  ]nade  within 
sLxty  days  from  the  date  of  said  settlement. 

Sec.  2.  This  act  shall  take  effect  and  be  in  force  from  and  after  its  passage. 

An  Aft  to  reserve  from  sale  the  north  half  of  section  sixteen  in  township  seven  south  and 
range  three  east,  iloute  Diablo  meridian. 

Approved  April  1,  1876  ;  1875-6,  679. 

Jieserved  from  sale. 

Section  1.  The  north  half  of  section  sixteen,  in  township  number  seven  south 
and  range  niunber  three  east,  Monte  Diablo  meridian,  is  hereby  reserved  from 
sale  by  the  State  of  California  until  otherwise  directed  by  the  legislature. 

Sec.  2.  This  act  shall  take  effect  and  be  in  force  from  and  after  its  passage. 

3498.  Api>Ucaiions  not  to  he  approved  for  sixty  days. 

Sec.  34118.  All  applications  filed  in  the  surveyor-general's  office  must  be  re- 
tained sixty  days  before  apjoroval. 

3499.  Contests,  how  determined. 

Sec.  3499.  If  two  or  more  claim  the  same  land,  the  contest  must  be  deter- 
mined as  proWded  in  Article  I  of  this  chapter;  but  no  person  has  a  right  to  pur- 
chase by  reason  of  any  settlement  or  improvement,  unless  application  is  made 
within  the  timQ^  above  prescribed. 

3500.  Apjjlicaiions  for  other  titan  sixteenth  or  thirty-sixth  section. 

Sec.  3500.  Any  person  desiring  to  purchase  any  lands  mentioned  in  section 
3494,  except  the  sixteenth  and  thirty-sLxth  sections,  must  make  an  affidavit  that 
he  is  a  citizen  of  the  United  States  (or  has  iiled  his  intention  of  becoming  so),  a 
resident  of  the  state,  of  lawful  age;  that  he  desires  to  purchase  such  lands  (de- 
scribing the  same  by  legal  subdivisions)  under  the  provisions  of  this  title,  and 
that  there  is  no  valid  claim  to  such  land  other  than  that  of  the  applicant;  that 
he  has  nut  entered  any  land  in  part  satisfaction  of  the  grant  in  lieu  of  sixteenth 
or  thirty-hixth  sections,  which,  together  with  that  now  sought  to  be  purchased, 
exceeds  throe  liundnd  :uid  twenty  acres. 
8501.   AJfidnrit  xchfit  female  is  applicant. 

Sec.  3501.  If  the  applicant  is  a  female,  the  affidavit  must  also  show  that  she 
is  entitled  iu  jjurcliase  real  estate  in  her  own  name. 

3502.  I,(tiid  u-arrants  received  in  payment  of  purchase-money  of  certain  lands. 
Sko.  3.*02.  School  land  warrants  issued  by  authority  of  the  state  are  receiv- 
able in  ijayment  of  the  i)urchase-money  of  any  part  of  the  five  hundred  thou- 
sand acres  of  land  granted  to  the  state  for  school  purposes.  Such  payment 
must  be  made  to  the  register  and  the  warrants  canceled  before-  the  certificate  of 
purchase  is  issued. 

3503.  liifjlU  of  ])re-emption  on  school  land  sections. 

Sec.  3503.  In  all  cases  where  any  person  has  purchased  any  part  of  a  sixteenth 
or  tliirty-sixtli  section  from  the  United  States,  or  shall  hereafter  make  such  pur- 
chase, or  shall  be  an  actual  settler  on  any  sixteenth  or  thirty-sixth  section,  and 

428 


PROPERTY  OF  STATE.  3503 

entitled  to  a  pre-einptiou  thereto  under  the  hnvs  of  the  United  States,  for  which 
lands  this  state  has  received  indemnity,  or  will  or  would  be  entitled  to  indem- 
nity under  the  laws  of  the  United  States,  the  right  of  the  state  to  such  sixteenth 
and  thirty-sixth  sections,  or  parts  thereof,  are  relinquished  to  the  United  States 
for  tlie  use  of  such  purchasers  and  their  assignees,  and  of  such  pve-eniptors. 
When  any  person  who  is  in  good  faith  a  settler  upon  any  such  lands,  fails  to 
acquire  a  title  thereto  from  the  United  States,  he  may,  within  six  months  after 
such  failure,  apply  to  the  state  to  purchase  the  same,  and  his  application  sliall 
have  preference  over  all  other  applications  for  the  purchase  of  such  lands. 
[Ne^v  section,  approved  March  30,  1874;  ximendments  1873-4,  52;  took  e/J'ect  Juhj 
6,  1874. 

An  Act  regulating  the  sale  of  mineral  lands  [in  school  sections]  belonging  to  the  state. 
Approved  March  28, 1874;  1873-4,  766. 

Affidavit  for  imrchase. 

Section  1.  Any  person  desiring  to  purchase  from  this  state  any  portion  of 
any  sixteenth  or  thirty-sixth  section,  that  shall  have  been  designated  by  United 
States  survey  as  of  a  mineral  character,  or  which  is  so  in  fact,  shall  make  an 
affidavit  before  some  officer  authorized  to  administer  oaths,  that  he  or  she  is  a 
citizen  of  the  United  States,  or,  if  a  foreigner,  that  he  has  tiled  his  intention  to 
become  a  citizen  of  the  United  States;  that  he  or  she  is  of  lawful  age,  and 
desires  to  purchase  said  land,  giving  a  description  thereof  by  legal  subdivisions; 
that  he  or  she  has  not  entered  any  portion  of  such  mineral  lands  wdiich,  together 
with  that  applied  for  in  such  affidavit,  will  exceed  forty  acres;  that  there  is  no 
occu2:)ation  of  said  land  adverse  to  that  which  he  or  she  holds,  or,  if  there  be 
ail}'  adverse  occupation  thereof,  then  he  or  she  must  state  the  name  of  such 
adverse  occupant,  together  with  the  fact  that  the  plat  of  the  township  has  been 
on  file  six  months  or  over,  and  that  such  adverse  occupant  has  been  in  such 
occupation  six  months  or  over. 

Preferred  purchasers. 

Sec.  2.  Any  j)erson  that  shall  be  in  the  actual  possession  of  an}'  of  said  lands 
described  in  section  one,  at  the  time  of  the  survey  thereof  by  the  United  States, 
or  at  the  time  of  the  passage  of  this  act,  shall  be  considered  a  preferred  pur- 
chaser thereof  to  the  extent  of  his  or  her  mining  claim;  jnovided,  he  or  she 
make  application  for  the  purchase  of  the  same  on  or  before  the  first  day  of  Jan- 
uary, eighteen  hundred  and  seventy-seven,  if  the  j)lat  of  such  survey  be  already 
filed  in  the  United  States  land  office;  and  if  not  so  filed,  then  within  six  months 
after  the  filing  of  such  plat,  as  aforesaid.  [Amendment,  approved  Februai-y  3, 
1876;  1875-6,  20;  took  effect  from  passage ;  repealed  all  acts  in  covffict.^"'' 

Contests  and  actions. 

Sec.  8.  When  a  contest  shall  arise  as  to  the  mineral  character  of  the  lands 
applied  for,  or  from  any  other  cause,  the  surveyor-general,  or  the  register  before 
whom  the  contest  is  made,  must,  within  thirty  days  after  the  adverse  application 
is  filed,  unless  sooner  referred,  at  the  request  of  either  claimant,  make  an  order 
referring  such  contest  to  the  district  court  of  the  county  within  Avhich  the  land 
is  situated,  and  must  enter  such  order  in  the  proper  book  of  his  office,  and  for- 
ward a  copy  thereof  to  the  clerk  of  the  court  to  which  the  reference  is  made. 
Upon  the  filing  of  a  copy  of  such  order  with  the  clerk  of  the  court,  either  party 
may  commence  an  action  in  said  court  to  determine  the  conflict,  and  the  court 
shall  have  full  and  complete  jurisdiction  to  hear  and  determine  the  same. 
Unless  an  action  shall  be  commenced  within  ninety  days  after  the  copy  of  the 

(a)  The  original  Beotion  did  not  have  the  words  "  to  after  the  filing  of  the  plat  of  survey  in  the  United 
the  extent  of  his  or  her  mining  claim."  It  required  the  States  land  office  or  within  ten  months  after  the  pas- 
application  for  purchase  to  be  made  within  six  months     sage  of  the  act. 

429 


3503  POLITICAL  CODE. 

oi-aer  of  reference  sliall  have  beeu  filed  with  the  clerk  of  the  court,  the  party 
making'  such  demaud,  or  the  adverse  claimant,  if  the  case  is  referred  without 
demand,  shall  he  deemed  to  have  waived  and  surrendered  his  or  her  right  to 
jnu-chase,  and  the  sm-veyor-general  or  register  shall  proceed  as  though  his  or 
her  application  had  not  been  made. 

Sale. 

Sec.  4.  All  lands  sold  under  the  provisions  of  this  act  shall  be  sold  for  the 
sum  of  two  dollars  and  fifty  cents  per  acre,  in  United  States  gold  coin,  payable 
to  the  treasurer  of  the  county  in  which  the  lands  are  situated,  within  fifty  days 
from  the  date  of  the  approval  by  the  sui-veyor-general ;  and  in  case  said  pay- 
ment is  not  made  within  said  fifty  days,  the  land  described  in  the  location  shall 
revert  to  the  state  without  suit,  and  said  location  shall  be  and  become  null  and 
void.  All  payments  made  to  the  county  treasurer  as  above  provided,  shall  be 
jiaid  over  and  accounted  for  as  other  moneys  received  for  state  lands  are  required 
to  be  jjaid  over  and  accounted  for. 

Manner  of  proceedings. 

Sec.  5.  The  surveyor-general  and  register  shall,  in  the  matter  of  approving 
locations,  issuing  certificates  of  purchase  or  patents,  or  in  other  proceedings 
relating  to  the  sale  of  lands  of  a  mineral  character,  which  proceedings  are  not 
provided  for  in  this  act,  proceed  in  the  same  manner  as  is  now  provided  for 
the  sale  of  sixteenth  and  thirty-sixth  sections  which  are  not  of  a  mineral 
character. 

Vested  7'ighls. 

Sec.  G.  All  patents  issued  by  the  state  to  any  portion  of  any  sixteenth  or 
thirty-sixth  section,  shall  be  subject  to  any  vested  and  accrued  water  rights, 
ditches,  and  reservoirs,  used  in  connection  therewith,  acquired  by  priority  of 
possession  under  local  customs,  and  the  decisions  of  the  coiu'ts,  and  the  right 
of  way  for  the  construction  of  ditches  and  canals,  for  mining  and  other  pui'- 
poses,  over  all  of  the  sixteenth  and  thirt^'-sixth  sections  owned  by  the  state,  is 
hereby  granted  and  confirmed. 

Patents,  paipnents,  jiurchases. 

Sec  7.  After  the  passage  of  this  act,  no  patent  shall  be  issued  for  any  of  the 
lauds  described  in  this  act  upon  which,  at  the  time  of  the  application  therefor, 
there  was  and  still  is  any  actual  bona  fide  mining  claim,  except  to  the  person 
wlio  is  the  owner  of  such  mining  claim  under  local  mining  customs;  and  w^hen 
an  ap])licant  for  such  hinds,  not  owning  such  mining  claim,  shall  have  paid 
the  purchuse-money  therefor,  in  whole  or  in  part,  he  may  present  his  certificate 
of  ]>iirchaKe,  and  receive  in  exchange  therefor,  from  the  register,  a  certificate 
showing  the  whole  amount  paid;  and  the  controller,  upon  the  surrender  of 
Buch  certificate,  njust  draw  his  warrant  in  favor  of  the  person  surrendering  such 
certificate,  fur  the  amount  therein  specified,  on  the  treasurer  of  state,  who  must 
])ay  tlie  sum  out  of  the  fund  into  which  the  purchasCrmoney  was  paid;  pro- 
vided, that  the  owner  of  such  mining  claim,  under  such  mining  customs,  shall 
apply  to  jiun-hase  the  same  within  six  months  after  the  plat  of  the  township 
containing  sucli  land  shall  have  been  filed  in  the  local  United  States  land  olfice, 
or  on  or  before  the  first  day  of  January,  eighteen  hundred  and  seventy-seven; 
aii.l  j.rovided  further,  that  any  owner  of  a  bona  fide  mining  claim,  who  shall 
liave  entered  into  an  agreement  with  the  api)licant  for  any  portion  of  [the] 
sixteenth  or  thirty-sixtli  section  upon  which  said  mining  claim  is  situated,  for 
tlio  procurement  of  ii  title  for  the  same,  shall  not  avail  himself  of  the  provis- 
ions of   this  section.     The   governor  of  this  state  shall  not  sign  any  patent 

430 


PROPERTY  OF  STATE.  3503-3518 

contrary  to  the  provisions  of  this  act.  [Amcndmenl,  approved  February  3,  1870; 
1875-G,  20;  took  effect  from  pa>imge  ;  repealed  covjlictiiuj  ads}"'' 

Sec.  8.  All  acts  and  parts  of  acts  in  conflict  Avith  this  act  are  hereby 
repealed. 

Sec  9.  This  act  shall  take  effect  and  be  in  force  from  and  after  its  passage. 

ARTICLE  IV. 

PAYMENTS,    OEETIFICATES    OF   PUUCHASE,    AND    PATENTS. 

3512.  Parjments,  how  made. 

Sec  3512.  Whenever  any  survey  or  location  has  been  made  or  approved,  the 
purchaser  must,  within  fifty  days  from  the  date  of  approval  or  location,  present 
his  copy  of  the  same  to  the  county  treasurer  of  the  county  in  which  the  land, 
or  some  part  thereof,  is  situated,  who  must  receive  the  amount  to  be  paid,  and 
the  fee  for  the  certificate  of  j^urchase,  indorsing  his  receipt  therefor  ujion  the 
certificate  of  location  or  survey,  and  returning  it  to  the  purchaser. 

3513.  Failure  to  jyciy  to  ivork  forfeiture. 

Sec  3513.  In  case  payment  is  not  made  within  fifty  days,  the  lands  described 
in  the  survey  or  location  revert  to  the  state  without  suit,  and  the  survey  or  loca- 
tion is  void.  All  subsequent  payments  must  be  made  to  the  county  treasurer, 
in  like  manner,  who  must  indorse  the  same  upon  the  certificate.  The  treasurer 
must  direct  the  purchaser  to  take  the  certificate  so  indorsed  to  the  auditor,  who 
must  charge  the  treasurer  with  the  amount  received,  and  make  his  check  upon 
the  indorsed  receipt. 

3514.  Register  to  issue  certificates  of  purchase. 

Sec  3514.  Whenever  the  register  receives  from  a  county  treasurer  a  state- 
ment showing  that  an  applicant  for  state  lands  has  made  the  first  payment,  he 
must  issue  to  the  person  entitled  thereto  a  certificate  of  purchase,  showing  the 
class  of  land  i^urchased,  the  number  of  acres,  the  price  per  acre,  the  date  of 
payment,  the  date  from  which  interest  is  to  be  comj)uted,  the  amount  paid  and 
the  amount  remaining  unpaid,  which  certificate  is  prima  facie  evidence  of  title. 
[Amendmeiit ,  approved  March  30,  1874;  Amendments  1873-4,  52;  took  effect  July 
6,  1874.^^' 

3515.  Certificates  of  purchase  may  he  sold. 

Sec  3515.  Certificates  of  purchase,  and  all  rights  acquired  thereunder,  are 
siibject  to  sale,  by  deed  or  assignment,  executed  and  acknowledged  before  any 
officer  authorized  by  law  to  take  acknowledgments  of  conveyances  of  real  prop- 
erty, or  before  the  register. 

3516.  Sale  to  -be  recorded. 

Sec  3516.  All  such  sales  must,  when  the  deed  or  assignment  is  recorded  by 
the  county  recorder,  be  rejDorted  by  him  to  the  register,  to  be  entered  in  the 
books  of  his  office, 

3517.  Compensation  of  recorder. 

Sec  3517.  The  recorder  is  entitled  to  receive  from  the  purchaser,  for  making 
such  report,  a  fee  of  fifty  cents. 

3518.  Duplicate  for  lost  certificate. 

Sec  3518.  If  the  owner  of  a  certificate  of  purchase  claims  that  it  has  been 
lost,  destroyed,  or  is  beyond  his  control,  the  register  must  take  testimony  con- 
cerning the  loss,  destruction,  or  reason  why  the  same  is  beyond  his  control. 

(a)  The  original  section  after  "local  mining  cub-  seven  "  it  had  the  words  "  within  ten  months  after  the 

toms"had  the  words  "  and  not  to  guch  owner  in  ex-  passage  of  this  act."                                                            -^^ 

cess  of  forty  acres;"  and  instead  of  "  on  or  before  the  (b)   The  original  section  had  the  word  "  primary 

first  day  of  January,  eighteen  hundred  and  seventy-  instead  of  "prima  facie." 

431 


3518-3523  POLITICAL  CODE. 

But  tlio  party  must,  before  the  lieanng,  make  affidavit  that  he  has  not  sold  the 
said  certiiicate  of  purchase,  or  the  land  described  therein;  and  must  publish 
a  notice  in  some  ne^Yspaper  in  the  county  ^vllere  the  land  is  situated;  or  if  there 
is  no  newspaper  published  in  the  county,  then  in  some  newspaper  of  general 
circulation  in  the  county,  for  at  least  four  weeks,  describing  the  certificate  and 
the  lands  for  which  the  same  was  issued,  stating  the  name  of  the  person  to 
whom  the  same  was  issued,  and  the  person  then  claiming  to  own  it,  together 
with  the  time  and  place  of  the  heanng.  If  the  register  is  satisfied  of  the  loss 
or  destruction  of  the  certificate,  or  that  it  is  beyond  the  control  of  the  person 
owning  the  same,  he  must  issue  to  the  owner  thereof  a  duplicate,  with  the 
word  "duplicate"  written  across  the  face  thereof  in  red  ink.  Such  duplicate 
shall  have  the  same  force  and  efl'ect  as  the  original.  If  there  is  a  contest  as  to 
the  issuing  of  a  duplicate  certificate,  the  register  may  hear  and  determine  the 
same,  or  may  refer  it  to  the  projier  court,  as  jDrovided  in  section  3414.  [Amend- 
ment, approved  Jfarch  30,  1874;  Amendments  1873-4,  53;  took  effect  July  G, 
1874.'"' 

3519.  Register  to  prepare  patents,  when. 

Sec  3519.  "Whenever  final  payment  has  been  made  for  any  tract  of  land,  the 
selection  of  which  has  been  accepted  and  approved  by  the  United  States  au- 
thorities, or  when  the  tract  finally  j^aid  for  or  reclaimed  is  swamp  and  over- 
flowed, salt  marsh,  or  tide  lands,  the  register,  upon  the  surrender  of  the 
certificate  of  purchase  by  the  person  entitled  to  the  same,  must  prepare  a 
patent  for  the  land,  and  send  it  to  the  governor,  together  with  a  certificate  that 
the  laws  in  relation  thereto  have  been  complied  with,  that  payment  in  full  has 
been  made,  and  that  the  party  named  in  the  prepared  patent  is  entitled  to  it. 

3520.  Patent,  hoiv  executed. 

S^:c.  3520.  The  patent  must  then  be  signed  by  the  governor,  attested  by  the 
secretaiT  of  state,  sealed  with  the  great  seal  of  the  state,  and  be  countersigned 
by  the  register. 

3521.  Not  to  ist^ue  until  one  year  after  approx'al  of  survey,  etc. 

Stc  3521.  No  patent  must  issue  until  after  the  expiration  of  one  year  from 
the  date  of  ai)proval  of  the  survey  or  location  by  the  surveyor-general,  nor 
until  the  lands  are  relinquished  to  the  state  by  authority  of  the  general  land 
office  at  "Washington.  Such  relinquishment  is  not  required  for  locations  of  the 
sixteenth  and  tliirty-sixth  sections  in  place,  or  for  swamp  and  overflowed  lands, 
shown  to  be  such  by  the  official  surveys  made  by  authority  of  the  United  States 
suney  or-general . 

3522.  I'atentH  to  he  recorded  and  delivered. 

She.  3522.  The  register  must  record  all  patents  in  books  to  be  kept  in  his 
office  for  that  purpose,  and  then  deliver  them  to  persons  entitled  thereto. 

3523.  Effect  of  patent  issued  to  deceased  persons. 

Stc.  3523.  Where  a  patent  for  lands  is  issued  in  the  name  of  a  deceased 
pei-Bon,  the  title  is  vested  in  the  heirs,  devisees,  or  assignees  of  such  person  in 
the  same  nninner  as  if  the  patent  had  issued  to  such  person  during  life. 

(a)  Original  w;r(lon:  tlm  prrpon  to  whom  it  was  IsBued,  and  the  person  then 

Hm-.  :i.'<lH.  If  i;..   I,.  I :.  r  <if  a  ccrtlfl.'atf  of  imnhiiKC  claiiiiiiiK  to  own  it.     If  the  register  is  sutiKlied  of  the 

claltim  th«t  il  I   c,r  di-Ktrnjed.  tlie  rcKlster  h)KS  or  destruction  of  the  certificnte,  he  niuKt  issue  to 

muHt  U.k«-  !•    ■  .  riiiii«  the   Iokh  or  destruc-  the  owner  thereof  a  duplicate,  with  the  word  •' Uupli- 

tl..n.     Jiiit  til'  ■    li.fi.re  tlie  li.-nrinK.  publish  cate  "  written  across  the  face  thereof  in  red  ink.    Such 

a  notl.e   III  M.„,,   1..  A^j.„i,er  In   tlie  i.iunty  where  the  duplicate   has  the  force  and  effect  of  the  original.     If 

loud  Is  utii.-ili.l.  orif  lli.-re  is  im  liewspajM-r  puldished  th.re  is  a  ci.ntesl  as  to  the  issuing  of  a  duplicate  cer- 

in  th<-  cc.uiity.  then  In  home  newnpii])<r  of  general  cir-  tilicnti;,  the  register  may  hear  and  determine  tlieeame, 

rulation  ui  the  county,  for  at  least  four  weeks,  describ-  or  may  refer  it  to  the  proper  court,  as  provided  in  Bec- 

liig  th'-  c<  rtl)|.-»t<-  nriil  the  landii  for  which  tlie  same  whh  tion  3414. 
iMued  by  legal  subdiviHioUH,  uiid  ({iviiig  the   name  of 

432 


PKOPERTY  OF  STATE.  3523 

An  Act  to  provide  for  an  exaniinatiou  into  the  sale  and  disposal  of  state  lands. 
Approved  April  1,  187C  ;  1875-6,  798. 

Governor  to  appoint  commissioners. 

Section  1.  AV^itliin  sixty  days  after  the  passage  of  this  act  the  governor  shall 
appoint  three  suitable  persons,  who  shall  constitute  a  coimnission  for  the  pur- 
poses hereinafter  mentioned,  and  shall  be  known  as  the  state  land  commission, 
and  shall  hold  office  for  the  j)eriod  of  one  year  from  and  after  their  appointment 
by  the  governor. 

Commissioners  to  qualify  and  organize — Duty  of  commissioners. 

Sec  2.  The  commissioners  appointed  under  the  provisions  of  section  one  of 
this  act  shall,  within  thirty  days  after  their  appointment,  meet  at  some  conve- 
nient place  in  the  city  of  Sacramento  or  the  city  of  San  Francisco,  and  shall 
take  an  oath  in  writing  before  a  notary  public,  or  other  officer  duly  authorized 
to  administer  oaths,  to  faithfully  perform  the  duties  enjoined  by  the  jDrovisions 
of  this  act,  and  shall  thereupon  organize  by  the  election  of  a  chairman  and  sec- 
retary from  the  members  of  the  commission,  and  shall  forthwith  jiroceed  to  the 
investigations  provided  for  by  this  act.     It  shall  be  the  duty  of  said  commission: 

1.  To  ascertain  all  grants  made  by  the  United  States  to  this  state; 

2.  To  examine  all  titles  issued  by  this  state,  together  with  the  manner  in 
which  such  titles  have  been  issued; 

3.  To  ascertain  the  names  of  all  parties  to  whom  the  state  has  issued  titles 
for  more  than  three  hundred  and  twenty  acres,  together  with  the  number  of 
acres  in  excess  of  this  amount  sold  to  any  one  person,  and  to  ascertain  whether 
such  sales  have  been  made  for  parties  directly  or  through  attorneys; 

4.  To  ascertain  the  amount  of  controller's  warrants  outstanding  against  the 
several  reclamation  districts,  together  with  their  mode  of  issue  and  the  con- 
sideration received  therefor  by  the  district  upon  which  they  were  made  a  lien; 

5.  To  investigate  the  affairs  of  the  surveyor-general's  office  from  the  time  of 
the  organization  thereof; 

6.  To  make  such  examinations  into  any  and  all  matters  connected  with  the 
disposal  and  sale  of  state  lands  as  shall  be  deemed  to  promote  the  best  interests 
of  the  state. 

Attorney-general  to  aid  commissioners. 

Sec.  3.  It  is  hereby  made  the  duty  of  the  attorney-general  to  render  such 
professional  assistance,  not  incomiDatible  with  his  other  official  duties,  as  the 
commission  may  require.  The  commission  may  employ  an  attorney-at-law 
versed  in  the  land  laws  of  this  state,  to  assist  in  the  investigations  provided  for 
in  this  act,  at  an  expense  not  to  exceed  two  hundred  and  fifty  dollars  j^er  mouth 
while  so  employed. 

Powers  of  commissioners. 

Sec.  4.  The  commissioners  shall  have  power  to  administer  oaths,  to  send  for 
books  and  papers,  and  to  comjoel  the  attendance  of  witnesses,  and  for  the  neces- 
sary purposes  of  their  investigations  shall  have  access  to  the  files  and  records  of 
all  state  offices. 

Reports  of  same. 

Sec  5.  The  commission  shall  report  to  the  governor  from  time  to  time,  as 
the  public  interests  may  require,  and  shall  make  a  full  and  complete  report  of 
all  their  proceedings  to  the  legislature  at  its  next  regular  sessi(3ii. 

Expenses  of  commission. 

Sec  6.  The  commission  shall  provide  proper  offices  and  furniture  for  its  own 
use,  at  an  expense  not  exceeding  nine  hundred  dollars  per  annum,  and  for  con- 
tingent exj)enses  not  to  exceed  twenty-five  dollars  per  month. 
28  433  ^' 


3523-3536  POLITICAL  CODE. 

Same,  report  to  hoard  of  examiners. 

Sec.  7.  An  itemized  accouut  of  the  expenses  of  the  commission,  including 
office  rent,  light,  fuel,  salaries,  and  other  necessary  expenses,  together  with  the 
amounts  expended  in  procuring  witnesses,  and  other  testimony  touching  the 
investigation  herein  provided  for,  shall  be  made  monthly  to  the  board  of  exam- 
iners, veritied  by  the  oath  of  the  chairman  of  the  commission. 

Salaries. 

Sec.  8.  The  membei-s  of  said  commission  shall  be  paid  a  salary  of  tw^o  hundred 
dollars  per  mouth  each. 
Board  of  examiners  to  audit  accounts. 

Sec.  0.  The  board  of  examiners  shall  audit  the  accounts  of  the  commission, 
and  when  found  correct  shall  order  the  controller  of  state  to  draw  his  warrants 
for  the  several  accounts  found  due,  in  favor  of  the  persons  to  w^hom  the  same 
oi'e  due  respectively. 
Controller  to  draiv  warrants. 

Sec.  10.  The  controller  of  state  is  hereby  directed  to  draw  his  warrant  ujDon 
the  state  treasury  for  the  several  amounts  audited  by  the  board  of  examiners, 
in  favor  of  the  persons  to  whom  the  same  are  due  respectively,  and  the  state 
treasurer  is  hereby  required  to  pay  the  same  out  of  the  general  fund  in  the  state 
treasury. 

Sec.  11.  This  act  shall  take  effect  immediately. 

AETICLE  V. 

SELECTION    AND    SALE    OF    UNH^ERSITT    LANDS. 

3533.  Regents  of  university  to  select  and  sell  certain  lands. 

Sec.  3533.  The  regents  of  the  university  may  order  the  selection  of  the  one 
hundred  and  fifty  thousand  acres  of  land  granted  to  the  state  for  the  use  of  an 
agi-icultural  college,  and  disjDose  of  the  same  at  the  price  and  in  the  manner 
fix(  d  by  them. 

3534.  Land  agent  of  university,  duty  of. 

Sec.  3534.  The  land  agent  of  the  university,  as  the  agent  of  the  state,  must 
select  the  lands  according  to  the  ins\riictions  of  the  board,  and  issue  certificates 
of  purchase  and  patents  to  purchasers  who  com2)ly  with  the  conditions  fixed  by 
the  Ixjard;  and  the  regents  must  invest  all  moneys  accruing  from  the  sale  of 
lands  as  they  may  deem  best,  subject  to  the  conditions  of  the  act  of  congress 
granting  such  lauds. 

3535.  Certain  moneys  to  be  paid  out  of  treasury  upon  order  of  regents. 

Sec.  3535.  All  moneys,  securities,  or  other  properties  arising  from  the  sale 
of  the  seventy-two  sections  granted  to  the  state  for  a  seminary  of  learning,  and 
from  the  sale  of  the  ten  sections  granted  to  the  state  for  the  erection  of  public 
buildings,  must  be  paiil  out  of  the  state  treasury  on  the  order  of  the  regents  o^ 
the  university. 

353G.   I'urchayrrs  if  crrlain.  hmds  icho  have  not  paid  up,  to  be  included  in  delin- 
(fucnl  lixt. 

Sec.  353(1.  All  persons  who  have  purchased  any  portion  of  either  of  the 
grants  iiienti()ne|l  in  the  preceding  section,  and  who  have  not  paid-in  full 
therefor,  must  be  included  in  the  delinquent  list,  and  the  district  attorney  must 
proceed  iigaiust  such  delintjuents  as  provided  in  sections  3547  and  3548,  and 
the  pntvisions  of  sections  3548  to  355G,  inclusive,  are  made  applicable  to  such 
proceedings.  If  such  lands  revei-t  to  the  state,  they  j)ass  under  the  control  of 
and  may  be  sold  by  the  board  of  regents  of  the  university.         . 

•  434 


PROPERTY  OF  STATE.  3536-3547 

An  Act  couceruiiig  the  selection  and  sale  of  university  lands. 
,  Approved  March  13,  1874;  1873-4,  35G. 

Land  contests,  how  determined. 

Section  1.  In  all  cases  when  a  contest  shall  arise  between  two  or  more  per- 
sons concerning'  the  right  of  such  persons  to  purchase  any  portion  of  the  one 
hundred  and  fift}'  thousand  acres  of  land  granted  to  the  state  for  the  use  of  an 
agritmltural  college,  if  either  party  shall  demand  a  trial  in  the  courts  of  the 
state,  the  land  agent  of  the  university,  as  the  agent  of  the  state,  shall  make 
an  order  referring  said  contest  to  the  district  court  of  the  county  in  which  the 
land  involved  is  situated,  and  shall  enter  said  order  in  the  pro^jcr  record-book 
of  his  office;  provided,  that  the  party  making  such  demand  shall  prosecute  his 
contest  to  judgment  within  six  months  from  the  date  of  such  demand,  unless 
for  cause  satisfactory  to  the  court.  Either  party  may  bring  an  action  in  the 
district  court  of  the  county  in  which  the  land  in  question  is  situated,  to  deter- 
mine such  conflict,  and  the  proffer  of  a  certified  copy  of  the  entry,  made  by  the 
said  agent,  shall  give  the  said  district  court  full  and  complete  jurisdiction  to 
hear  and  determine  said  conflict;  and  upon  the  filing  with  the  said  agent  of  a 
coj^y  of  the  final  judgment  of  said  court,  he  shall  issue  the  certificate  of  pur- 
chase or  other  evidence  of  title,  in  accordance  with  said  final  judgin^t. 
Affidavit  of  purchaser.   ■ 

Sec.  2.  Whenever  any  i-esident  of  this  state  desires  to  purchase  any  part  of 
the  one  hundred  and  fifty  thousand  acres  of  land  granted  to  the  state  for  the 
use  of  an  agricultural  college,  he  or  she  shall  make  an  affidavit  before  any 
officer  authorized  to  administer  oaths,  that  he  or  she  is  a  citizen  of  the  United 
States  (or,  if  a  foreigner,  then  that  he  has  filed  his  intention  of  becoming  a 
citizen),  a  resident  of  the  state,  of  lawful  age,  that  he  or  she  desires  to  purchase 
said  land,  giving  a  description  thereof  by  legal  subdivisions,  and  that  there  are 
no  improvements  of  any  kind  on  said  land  other  than  those  of  the  api^licant; 
or  if  there  be  improvements  other  than  his  own,  then  he  or  she  shall  state  that 
such  improvements  are  the  property  of  (giving  his  or  her  name),  and  have  been 
upon  the  laud  for  three  mouths  or  over,  and  that  the  township  has  been  sec- 
tionized  and  the  j^lats  of  survey  fited  in  the  Jaud  office  of  the  district  in  which 
the  land  is  located,  for  three  months  or  over,  which  application  shall  be  for- 
warded to  the  said  land  agent  of  the  university. 

Skc.  3.  This  act  shall  be  in  force  from  and  after  its  passage. 

ARTICLE  VI. 

e- 
PEOCEEDINGS    AGAINST    DELINQUENT     PUKCHASERS. 

3546.  Register  to  famish  statement  of  delinquents  to  district  attorneys. 

Sec  3546.  The  register  must,  on  the  first  dS,y  of  May  of  each  year,  forward 
to  the  district  attorney  of  each  county  a  statement  embracing  all  the  lands  in 
the  county  upon  which  payments  have  not  been  made,  which  statement  must 
show  the  name  of  the  purchaser,  the  number  and  date  of  the  surveyor  location 
and  of  the  cei-tificate  of  purchase,  the  amount  paid,  the  amount  impaid,  and 
the  amount  then  due.  No  lands  within  any  reclamation  district  must  be  em- 
braced in  such  statement  after  the  receipt  by  the  register  of  the  certificate  of 
the  board  of  supervisors  that  works  of  reclamation  have  been  commenced. 

3547.  Delinquent  purchasers,  and  proceedings  against. 

Sec.  3547.  Upon  receipt  of  the  delinquent  list  the  district  attorney  must  add 
thereto  a  notice  that  if  the  amount  due  is  not  paid  in  fifty  days  after  the  date 
thereof  he  will  commence  suit  to  foreclose  the  interest  of  purchasers  in  the 
lands,  and  must  publish  the  list  and  notice  for  four  weeks  immediately  follow- 

435 


3547-355G  POLITICAL  CODE. 

ing  the  date  of  the  notice  in  a  newspaper  published  in  the  county,  or  if  there 
is  no  newspaper  published  therein,  then  he  must  post  copies  of  the  same  in  at 
]ea>*t  five  ijubhe  phices  in  the  county. 

3548.  Action. 

Sec.  3548.  After  the  expiration  of  the  fifty  days  he  must,  in  the  name  of  the 
people  of  the  State  of  California,  commence  actions  in  the  district  court  against 
all  purchasei-s  or  holders  of  certificates  of  purchase  who  have  not  either  paid 
the  amount  due,  together  with  the  cost  of  publication,  or  suiTendered  the  title 
to  the  state,  as  provided  in  section  3570,  to  obtain  a  judgment  of  foreclosure  of 
the  interest  of  the  purchaser  or  assignee  of  the  purchaser  in  the  land,  and  to 
annul  the  certificate  of  j^urchase. 

3549.  Service  of  k-um7no7}s. 

Sec.  3541).  Senice  of  the  summons  in  such  action  may  be  made  by  publica- 
tion in  some  newspaper  published  in  the  county  for  four  weeks,  or  if  no  ncAvs- 
l)ai)er  is  published  in  the  county,  then  by  posting  one  copy  of  the  summons  for 
four  weeks  at  the  court-house  door  of  the  county,  and  two  copies  in  public 
places  in  the  township  where  the  land  is  situated. 

3550.  Copy  of  decree  to  he  filed. 

Sec  3550.  Twenty  days  after  the  entry  of  judgment  the  district  attorney 
must  file  in  the  office  of  the  register,  and  in  the  recorder's  office  of  the  county 
in  which  the  land  is  situated,  certified  copies  thereof. 

3551.  When  ijurcha!<er  may  make  jmyment  and  he  restored  to  all  rights. 

Sec  3551.  The  holder  of  the  certificate  of  purchase  may,  at  any  time  before 
such  filing,  pay  to  the  sherift'  the  amount  due  the  state,  and  the  costs  of  suit 
that  have  accrued  up  to  the  time  of  payment;  whereupon  the  district  attorney 
must  ilismiss  the  suit  or  vacate  the  judgment,  and  the  purchaser  or  holder  of 
the  certificate  of  purchase  is  restored  to  his  rights  in  the  premises. 

3552.  Wlten  jiidrjment  binds  assignee. 

Sec  3552.  A  judgment  against  the  purchaser  binds  the  assignee,  unless  the 
notice  of  the  assignment  was  filed  with  the  register  before  the  commencement 
of  the  action. 

3553.  Compensation  of  district  attorney. 

Sec.  3553.  The  district  attorney  is  entitled  to  receive  ten  dollars  for  each  suit 
brought,  to  be  taxed  as  costs. 

3554.  After  filing  decree,  land  subject  to  sale. 

Sec.  3554.  After  judgment  foreclosing  the  interest  of  the  purchaser  or  the 
holder  of  the  certificate  has  been  entered  and  the  certified  copies  filed,  the  land 
ih  again  subject  to  entry  and  sale. 

3555.  Coy/.s  {f  .'itiitx  taxed  and  collected. 

Sec.  3555.  Upon  the  rendition  of  a  judgment  foreclosing  the  interest  of  the 
purchaser  or  of  liis  assigns  in  tlie  land,  and  annulling  the  certificate  of  pur- 
cliase,  judgment  for  costs  must  be  entered  against  the  defendant;  but  if  execu- 
tion isHued  tlicreon  is  returned  not  satisfied,  the  judgment  and  costs  must  be 
])aid  from  the  principal  or  interest  paid  by  the  purchaser  at  the  time  of  the 
original  location. 

35.':6.  SiifiHci/unil  jmrchasn-x  may  defend  suits  and  iirotect  their  interests,  how. 

Sec  355(5.  Any  jierson  having  a  conveyance  of  the  whole  or  any  portion  of 
the  lands  described  in  any  certificate  of  purchase,  to  annul  which  suit  has  been 
commenced,  but  to  wliom  the  certificate  has  never  been  surrendered,  may  defend 
such  action;  and  if  it  a],].carK  to  the  court  that  he  is  entitled  to  any  portion  of 
tlie  lands  described,  and  tlie  holder  of  such  certificate  does  not  pay  the  amount 
due,  the  court  must  order  the  certificate  annulled  and  a  new  one  to  issue  to  such 

43G 


PROPERTY  OF  STATE.  355G-3572 

person  upon  payment  into  court  by  liiia  of  tlie  amount  due  tlic  state  upon  the 
whole  tract;  and  such  person  is  thereupon  entitled  to  two  certified  copies  of  the 
decree,  one  of  which  he  must  file  in  the  county  recorder's  office  and  tlie  other 
with  the  register. 

ARTICLE  VII. 

MISCELLANEOUS    PROVISIONS    RELATING    TO    PUBLIC    LANDS. 

3566.  Duplicafesfor  lost  or  defaced  land  warrants. 

Sec.  356G.  Any  person  making  application  for  a  duplicate  school  land  war- 
rant, in  lieu  of  one  lost  or  destroyed,  must  make  proof  by  affidavit  to  the 
register  that  he  is  the  owner  of  such  warrant,  that  it  has  not  been  located,  and 
of  the  facts  establishing  the  loss  or  destruction  thereof,  and  must  file  with  the 
register  a  bond,  with  two  or  more  sureties,  to  be  api^roved  by  the  register,  pay- 
able to  the  State  of  California,  in  double  the  value  of  the  warrant,  conditioned 
that  the  warrant  will  not  be  presented  for  location. 

3567.  When  ivarrant  cannot  be  made  available. 

Sec  3567.  When  for  want  of  a  jiroper  acknowledgment  of  an  assignment  of 
the  original  land  warrant,  or  j^artial  destruction  or  defacement  thereof,  or  for 
any  other  cause,  it  cannot  be  made  available,  the  applicant  must  prove  that  he 
is  the  owner  of  the  warrant,  and  that  it  has  not  been  located,  and  must  file  the 
original  for  cancellation  with  the  register. 

3568.  Certificate  of  register. 

Sec  3568.  The  register  must  certify  that  the  applicant  is  entitled  to  a  dujili- 
cate  warrant  in  lieu  of  the  one  proved  to  have  been  lost  or  destroj'ed  or  pre- 
sented for  cancellation,  and  u^^on  presentation  of  such  certificate  to  the 
governor  he  must  deliver  to  the  applicant  a  duplicate  warrant  bearing  the  same 
number  as  the  original  warrant,  with  the  word  "  Duplicate"  written  across  the 
face  thereof,  which  duplicate  has  the  same  force  and  efl'ect  as  the  original. 

3569.  Duties  of  register. 

Sec  3569.  The  register  must  not  give  the  certificate  until  he  is  satisfied  that 
the  original  has  not  been  located,  or,  if  located,  that  the  lands  have  not  been 
and  will  not  be  charged  by  the  federal  government  as  part  of  the  five  hundred 
thousand  acres  of  land  granted  to  this  state. 

3570.  Abandonment  of  entry  or  location,  how  made. 

Sec.  3570.  Whenever  a  purchaser  of  laud  upon  credit  desires  to  abandon  the 
location  or  entry  made  by  him,  he  may  do  so  by  conveyance  of  his  title  to  the 
state  and  surrender  of  the  certificate  of  purchase,  or,  if  it  has  been  lost,  by 
filing  an  af&davit  of  that  fact  with  the  register. 

3571.  If  lands  sold  are  not  the  property  of  the  state,  the  p)archaser  to  be  repaid. 
Sec  3571.  If  any  land  sold  is  not  the  property  of  the  state,  the  holder  of  the 

certificate  of  purchase  or  patent  may  receive  in  exchange  therefor  from  the 
register  a  certificate  showing  the  amount  paid  and  the  class  of  land  upon  which 
the  payment  was  made. 

3572.  Controller's  warrant. 

Sec  3572.  The  controller,  upon  the  surrender  of  such  certificate,  must,  if  the 
land  sold  was  swamp  and  overflowed,  draw  his  warrant  in  favor  of  the  person 
surrendering  such  certificate  for  the  amount  therein  specified  upon  the  treasurer 
of  the  county  in  which  the  land  is  situated,  who  must  pay  the  same  out  of  the 
swamp  and  overflowed  land  fund;  if  the  land  sold  was  not  swamp  and  overflowed, 
then  the  controller  must  draw  such  warrant  on  the  treasurer  of  state,  who  must 
pay  the  same  out  of  the  fund  into  which  the  purchase-money  was  paid. 

437 


3573-3585  POLITICAL  CODE. 

3573.  ('f)iain  applications  made  valid. 

Sko.  3573.  All  applications  made  prior  to  Marcli  twenty-fourth,  eighteen 
Lumlrea  ami  seventy,  for  the  purchase  of  lands  under  the  provisions  of  an  act 
to  provide  for  the  uianagement  and  sale  of  lands  belonging  to  the  state,  ap- 
proved March  twenty-eighth,  eighteen  hundred  and  sixty-eight,  if  there  was 
not,  on  the  twenty-fourth  of  March,  eighteen  hundred  and  seventy,  two  or 
more  applicants  for  the  purchase  of,  or  conflicts  hetw^een  claimants  of  the  same 
laud,  are  valid,  although  the  affidavits  on  which  such  applications  were  based 
are  neither  in  form  nor  substance  in  compliance  with  the  provisions  of  such  act. 

3574.  Fres,  application  of. 

Skc.  3574.  Each  application  for  lands  must  be  accompanied  by  a  fee  of  five 
doUai-s,  and  no  application  shall  be  received,  filed,  or  noted  in  any  way  until 
such  fee  is  paid.  The  surveyor-general  shall  charge  the  same  fees  as  are 
allowed  the  register  for  like  services;  and  all  fees  collected  by  either  the  sur- 
veyor-general or  register  shall  be  paid  into  the  state  treasury  on  the  first  Mon- 
day of  each  and  every  month,  and  placed  to  the  credit  of  the  general  fund;  and 
said  officers  shall,  on  the  first  jMonday  of  each  month,  make  a  written  report  to 
the  state  controller,  stating  the  amount  of  fees  so  paid,  together  with  the 
sources  from  which  they  were  derived,  and  the  several  amounts,  by  items.  The 
surveyor-general  and  register,  whenever  it  may  be  necessary,  may  purchase 
such  majts  and  records  as  the  needs  of  their  office  may  demand,  but  all  claims 
against  the  state,  authorized  by  this  section,  shall  be  certified  to  tbe  state  board 
of  examiners,  and  if  the  same  be  allowed,  the  board  shall  direct  the  controller 
of  state  to  draAv  his  warrant  in  payment  of  the  same,  payable  out  of  the  gen- 
eral fund.  [Aini'ndmciit,  approved  February  10,  1^1  ij;  Amendments  1875-6,  57; 
took  ej/'txt  from  paf:i<a(/e.^'''> 

CHAPTEK  II. 

THE  YOSEMITE  VALLEY   AND   MARIPOSA   BIG  TREE   GROVE. 

3584.  Commissioners  to  manage. 

SiA'.  3584.  The  governor  of  this  state  and  the  eight  other  commissioners 
ai)pointed  by  the  governor  on  the  twenty-eighth  day  of  September,  eighteen 
hundred  and  sixty-four,  in  accordance  with  the  terms  of  an  act  of  congress 
entitled  an  act  autliorizing  a  grant  to  the  State  of  California  of  the  Yosemite 
valley  and  of  the  land  embracing  the  Mariposa  big  tree  grove,  approved  June 
tliirteenth,  eighteen  hundred  and  sixty-four,  constitute  a  board  to  manage  such 
jjreniiseH.  Any  vacancy  occurring  in  the  board  may  be  filled  by  the  appoiut- 
njont  of  the  governtn*.  The  commissioners  are  known  as  "The  Commissioners 
to  manage  tlie  Yosemite  Valley  and  the  Mariposa  Big  Tree  Grove,"  and  under 
Huch  name  tliey  and  their  successors  may  sue  and  be  sued,  and  have  full  power 
to  manage  and  administer  the  grant  made  and  the  trust  created  by  the  act  of 
congress,  and  to  jiiake  and  adopt  all  rules,  regulations,  and  by-laws  for  their 
(jwn  government,  and  the  government,  improvement,  and  preservation  of  such 
])reiiiiKe8. 

3585.  Guardian ,  and  Uus  compensation. 

Sec.  3585.  Tliey  may  ajtpoint  a  guardian  of  the  premises,  removable  at  their 

(<i)  <}tiKiutl  Bt'Ctlrtn:  surveyor-gpneral  muBt,  in  his  biennial  report,  include 

Srr.  :t.'i74.  fjich  «i.iillrBtlon  fur  IiiikIp  riiiiBt  be  nc-  a  tstatcment  of  tbe  amount  of  fees  received  by  both,  and 

(tJiiii.anli  .1  l.y  s  fctcif  Jlvi  rlnlliint.     Tin-  Kurv.yor-gen-  how  tlie  Baijie  were  dippoBed  of. 

<riil  may  r)ii,rK.-  tin-  miik'  f.-.  k  iih  (,r.  «ll.,wi  <1  the  ngiB-  It  whk  previously  amended  bv  act  of  Manh  .30,  ISli; 

Ur  for  lik<-  iwrvlceh.  mid   fe.-h  lolbc  ted   by  the  Kur-  Amendments  1873-4,  .^3,  eo  as"  to  add  to  the  original 

viy.r-t'in.  r«l  or  ri->.'lHt<-r  may  »m-  uw.I  in  d<  fruyliiK  tlie  b«m  tion   after  the   word  "  tnasury  "  the  words  "  quar- 

exi»iiM-H  of  procurinK  nmi))..  reeor<ln.  and  documents,  t<rly,  on  the  tirbt  Monday  in  January,  April,  July  and 

an<l  <  lira  BKi.li.tBme  In  ihe  oHli  <•  of  eltliir;  tli.-  bulame  October." 

thereof,  If  any,  U>  be  paid  Into  the  btatc  treasury.     The 

438 


REVENUE.  3585-3G17 

pleasure,  wlio  must  perform  such  duties  as  they  may  prescribe,  and  ma}'  re- 
ceive such  compensation  as  they  may  fix,  not  to  exceed  five  hundred  dollars 
per  annum, 
3586.  Report  of  commissioners. 

Sec.  358G.  The  commissioners  must  make  a  report  of  their  pi'oceedings  and 
of  the  condition  of  the  premises,  through  the  governor,  to  the  legislature,  at 
every  regular  session  thereof. 

CHAPTEK  III. 

STATE   BURYING   GROUNDS. 

3596.  Title  vested  in  state — Who  may  he  interred  therein. 

Sec.  3596.  The  fee  to  the  state  burying  ground,  in  the  city  cemeteiy  of  the 
city  of  Sacramento,  is  in  the  people  of  the  State  of  California,  and  there  may 
be  interred  therein  any  person  who,  at  the  time  of  his  death,  was  a  state  officer, 
or  a  member  of  the  senate  or  assembly. 

3597.  Duties  of  trustees. 

Sec.  3597.  The  board  of  trustees  of  the  state  burying  ground  have  the 
control  and  management  of  the  grounds  and  the  expenditure  of  all  moneys 
appropriated  for  the  maintenance  or  improvement  thereof. 


TITLE  IX. 

Bcueuue, 

Chapter  I.  Property  Ll\ble  to  Taxation 3607 

II.  Definitions 3617 

III,  Assessment  of  Property 3627 

IV,  Equalization  of  Taxes 3672 

V.  Levy  of  Taxes 3713 

VI.  Duties  of  the  Auditor  in  relation  to  Revenue 3727 

VII.  Collection  of  Property  Taxes 3746 

VIII.  Collection  of  Taxes   by   the  Assessor  on  certain  Personal 

Property 3820 

IX.  Poll  Taxes 3839 

X.  Settlements  with  the  Controller  and  Payments  into  State 

Treasury 3865 

CHAPTER  I. 

PROPERTY  LIABLE  TO   TAXATION. 

3607.  Property  subject  to  taxation. 

Sec  3607.  All  property  within  this  state,  except  the  property  of  the  United 
States,  of  the  state,  and  of  municipal  corporations,  is  subject  to  taxation. 

CHAPTER  II. 

DEFINITIONS. 
3617.   Terms  and  j)hrases  defined. 

Sec  3617.  Whenever  the  terms  mentioned  in  this  section  are  employed  in 
this  title,  they  are  employed  in  the  senses  hereafter  affixed  to  them : 
^.^^^_4^Y^      rh6-L.  439 


3G17-3629  POLITICAL  CODE. 

First.  The  terai  ' '  real  estate  "  includes : 

1.  The  ownership  of,  claim  to,  possession  of,  or  light  to  the  possession  of 
laud; 

2.  All  mines,  minerals,  and  quarries  in  and  under  the  land,  and  all  rights 
and  privileges  appertaiuiug  thereto; 

3.  Improvemeuts.  ^ 
Second.  The  term  "improvements"  includes: 

1.  All  buildiugs,  structures,  fixtures,  fences,  and  improvements  erected  upon 
or  affixed  to  the  laud; 

2.  All  fruit,  nut-bearing,  or  ornamental  trees  and  vines  not  of  natural  growth. 
Third.  The  term  "personal  property  "  includes  everything  which  is  the  sub- 
ject of  ownership,  not  included  within  the  meaning  of  the  term  "real  estate." 

Fourlli.  The  term  "full  cash  value  "  means  the  amount  at  which  the  property 
would  be  appraised  if  taken  in  payment  of  a  just  debt  due  from  a  solvent 
debtor.  [Amendment,  approved  April  3,  1870;  Amendments  1875-6,  58;  look 
effect  from  passage.'-^^ 

CHAPTEK  III. 

ASSESSMENT   OF    PROPERTY. 

3627.  Propertij  assessed  at  full  cash  value. 

Skc.  3G27.  All  projDcrty  must  be  assessed  at  its  full  cash  value. 

3628.  A.<sessment  to  be  made,  when. 

Sec  3G28.  The  assessor  must,  between  the  first  Monday  in  March  and  the 
first  Monday  of  July  in  each  year,  ascertain  the  names  of  all  taxable  inhabitants, 
aud  all  the  property-  in  his  county  subject  to  taxation,  and  must  assess  such 
property  to  the  persons  Avho  own,  claim,  have  the  possession  or  control 
thereof. 

3629.  J.-.-v>-,-or  to  require  a  statement  containing  xchat. 

bi;c.  3(j2'J.  He  must  exact  from  each  person  a  statement  in  writing  showing 
separately : 

1.  All  property  belonging  to,  claimed  by,  or  in  the  j)ossession  or  under  the 
coutrol  or  management  of  such  person; 

2.  All  pro])erty  belonging  to,  claimed  by,  or  in  the  possession  or  under  the 
control  or  management  of  any  firm  of  which  such  j^erson  is  a  member; 

3.  All  property  belonging  to,  claimed  by,  or  in  the  possession  or  under  the 
control  or  management  of  any  corporation  of  which  such  j)erson  is  president, 
Becretar)',  cashier,  or  managing  agent; 

4.  The  county  in  which  rsuch  jjroj^erty  is  situated,  or  in  which  it  is  liable  to 
taxation; 

5.  An  exact  description  of  all  lands,  improvements,  and  jDersonal  property, 
including  all  vosselB,  steamers,  and  other  water  craft,  and  deposits  of  money  or 
gold  dust,  and  the  names  of  the  persons  with  whom  such  dejDOsits  are  made, 
and  the  jjlaces  in  wliich  the}'  may  l^e  found; 

G.  All  other  facts  rcipiircd  by  the  state  board  of  equalization  or  by  the 
aBsesHor. 

"Whenever  one  member  of  a  firm  or  one  of  the  proper  officers  of  a  coi-joora- 
tion  lias  niade  a  statement  showing  the  ])roperty  of  the  firm  or  corporation, 
another  member  of  the  firm  or  another  officer  need  not  include  such  property 
in  the  statement  made  Ijy  him,  but  his  statement  must  show  the  name  of  the 
person  or  officer  who  made  the  statement  in  which  such  property  is  included. 

(a)  Th«'  orlKlnkI  iM-<tl<m  w««  llir-  .miii.-  ««  tlif  text.  trocs,  viiKH,  growing  crops,  and  plants  wliile  growing 

n  wnh  pn-rtuuhly  »iii.-n<l<<l  lj>- »<t  of  Murch  :J0,  1M74;  and    rootwl  in  thi;  ground,  txicpt    plants    and   trees 

Anicndm.  iitH  HCri-i.  liJ,  iu>  »«  to  ndd  nt  tli<  .ml  of  thi-  grown  in  nurwt-ries  lor  propagation  and  Bale,"  and  to 

flrbt  clBUije  of  the  first  iutxUvlhlou  the  wordH  "aud  omit  the  second  clause  of  the  Becoud  Bubdivisioa. 

440 


EEVENXIE.  3G30-3G33 

3630.  Supervisors  to  famish  blmik  forms  of  statements,  etc.  '^  ¥  *^-M. 
Sec.  3G30.  The  board  of  supervisors  must  furnish  the  assessor  witli  "blank^<^~9 

forms"  of  the  statements  provided  for  in  the  preceding  section,  affixing  thereto 
an  affidavit,  which  must  be  substantially  as  follows: 

"  I, ,  do  swear  that  I  am  a  resident  of  the  county  of  (naming  it);  that 

the  above  list  contains  a  full  and  correct  statement  of  all  property  subject  to 
taxation  which  I,  or  any  firm  of  which  I  am  a  member,  or  any  corporation, 
association,  or  company  of  which  I  am  president,  cashier,  secretaiy,  or  manag- 
ing agent,  own,  claim,  possess,  or  control,  and  which  is  not  already  assessed 
this  year,  and  that  I  have  not,  in  any  manner  whatsoever,  transferred  or 
disposed  of  any  property,  or  placed  any  property  out  of  said  county  or  my 
possession,  for  the  purpose  of  avoiding  any  assessment  upon  the  same,  or 
of  making  this  statement.  {Amendment,  approved  March  24, 1874;  Amendments 
1873-4,  143;  took  effect  fy-om  passage }'■'' 

3631.  Statement  to  he  filled  out  and  returned  to  assessor. 

Sec.  3631.  The  assessor  may  fill  out  the  statement  at  the  time  he  presents  it, 
or  he  may  deliver  it  to  the  person  and  require  him,  within  an  appointed  time, 
to  return  the  same  to  him,  properly  filled  out. 

3632.  General  powers  of  assessors. 

Sec.  3G32.  Every  assessor  shall  have  power: 

1.  To  require  any  person  found  within  such  assessor's  respective  county,  to 
make  and  subscribe  an  affidavit,  giving  his  name  and  place  of  residence; 

2.  To  subj^oena  and  examine  any  person  in  relation  to  any  statement  furnished 
to  him,  or  which  discloses  property  which  is  assessable  in  his  respective  county; 
and  he  may  exercise  this  power  in  any  county  where  the  persons  whom  he  de- 
sires to  examine  may  be  found,  but  shall  have  no  power  to  require  such  person 
to  appear  before  him  in  any  other  county  than  that  in  which  the  subpo3na  is 
served  upon  them.  Every  person  who  shall  refuse  to  furnish  the  statement 
hereinbefore  required  in  this  chapter,  or  to  make  and  subscribe  such  affidavit 
respecting  his  name  and  place  of  residence,  or  to  appear  and  testify  when  re- 
quested so  to  do  by  the  assessor,  as  above  provided,  shall,  for  each  and  every 
refusal,  and  as  often  as  the  same  is  rei^eated,  forfeit  to  the  people  of  the  state, 
the  sum  of  one  hundred  dollars,  in  gold  coin  of  the  United  States,  to  be  re- 
covered by  action  brought  in  theii-  name  by  the  respective  assessor  in  any  police 
or  justice's  court.  In  case  such  affidavit  shall  show  the  residence  of  the  person 
making  the  same,  to  be  in  any  county  other  than  that  in  which  it  is  taken,  or 
the  statement  shall  disclose  property  in  any  county  other  than  that  in  which  it 
is  made,  the  assessor  shall  in  the  respective  case,  file  the  affidavit  or  statement 
in  his  office,  and  transmit  a  cojoy  of  the  same,  certified  by  him,  to  the  assessor 
of  the  county  in  which  such  residence  or  property  is  therein  shown  to  be.  One 
half  of  all  moneys  recovered  by  any  assessor  under  the  provisions  of  this  section 
must  by  him  be  paid  into  the  treasury  of  his  county,  and  the  other  half  may  be 
retained  by  the  assessor  for  his  own  use.  [Amendment,  approved  Ilarch  24, 
1874;  Amendments  1873-4,  144;  took  effect  from  passage.'-^^ 

3633.  Property  of  person  neglecting  or  refusing  to  give  statement,  hoiv  assessed. 

Sec  3G33.  If  any  person,  after  demand  made  by  the  assessor,  neglects  or 
refuses  to  give  under  oath  the  statement  herein  provided  for,  or  to  comply  with 

(a)  The  original  section  did  not  have   the   words  prena  and  examine  witnefises  in  relation  to  any  state- 

"that  I  am  a  resident  of  the  county  of  (naming  it),"  ment;  and  all  persons  are  required  to  testify  when  re- 

nor  the  latter  part  of  the  section  commencing  with  the  quested  so  to  do  by  him;  and  in  case  ot  relusal,  the 

■words  "  this  year,  and  that  I  have  not,  in  any  manner  judge  of  any  court  must  issue  a  subpcrna  and  compel 

■whatsoever,  transferred."  a  refusing  witness  to  give  testimony,  and  may  for  each 

(6)  Original  section:  refusal  impose  a  fine  not  exceeding  twenty  doUars. 

6ec.  3t;s2.  The  assessor  may,  in  his  discretion,  sub- 

441 


3G33-3G^1  POLITICAL  CODE. 

the  other  requirements  of  this  title,  the  assessor  must  note  the  refusal  on  the 
assessment-book,  opposite  his  name,  and  must  make  an  estimate  of  the  value  of 
the  property  of  such  person;  and  the  value  so  fixed  by  the  assessor  must  not  be 
reduced  by  the  board  of  supervisors. 

3634.  Ai'cnrate  description  of  loroperty ,  hoic  obtained  by  assessor. 

Skc.  3(j34.  Whenever  the  assessor  deems  it  necessary  to  obtain  an  accurate 
description  of  any  tract  or  lot  of  land  in  his  county,  he  may  require  the  owner 
or  his  figent  to  furnish  the  same,  with  any  title  papers  he  may  have  in  his  pos- 
session; and  if  on  demand  the  owner  or  agent  neglects  or  refuses  to  furnish  the 
same,  the  assessor  may  emplo}'  the  county  surve3'or  to  make  out  a  description 
of  the  boundaries  and  location  thereof,  and  a  statement  of  the  quantity  of  land 
therein;  and  the  expenses  of  such  survey  must  be  returned  by  the  assessor  to 
the  county  auditor,  who  must  add  the  amount  to  the  taxes  assessed  upon  the 
property,  which  amount  so  added  must,  when  collected  by  the  collector  of  the 
county,  be  paid  over  to  the  county  siuweyor. 

3635.  Assessment  of  unknoicn  or  absent  oiuners  of  property. 

Sec,  3G35.  If  the  owner  or  claimant  of  any  property,  not  listed  by  another 
person,  is  absent  or  unknown,  the  assessor  must  make  an  estimate  of  the  value 
of  such  property. 

3636.  Same. 

Sec,  3G3G,  If  the  name  of  the  absent  owner  is  known  to  the  assessor,  the 
property  must  be  assessed  in  his  name;  if  unknown,  the  property  must  be 
assessed  to  "  unknown  owners." 

3637.  Property  situated  in  another  county. 

Sec.  3G37.  The  assessor,  as  soon  as  he  receives  a  statement  of  any  taxal^le 
property  situated  in  another  county,  must  make  a  copy  of  such  statement  for 
each  county  in  which  the  same  is  situated,  and  transmit  the  same  by  mail  or 
express,  to  the  assessor  of  the  proper  covinty,  who  must  assess  the  same  as  other 
taxable  i)roi)ei-ty  therein. 

3638.  ( 'nnxifjnod  proprrty. 

Skc.  3G38.  All  personal  property  consigned  for  sale  to  any  person  within  this 
state  from  any  place  out  of  this  state  must  be  assessed  as  other  property. 

3639.  Tnisli'cs,  (piardians,  executors  and  administratoi'S. 

S^x^  'MV.V,).  "When  a  person  is  assessed  as  agent,  trustee,  bailee,  guardian, 
executor  or  administrator,  his  representative  designation  must  be  added  to  his 
naiiif,  !iiid  the  assessment  entered  on  a  separate  line  from  his  individual  assess- 
Uient. 

3640.  Holders  of  stock  infirm  or  corporation. 

Skc.  3(;40.  The  owner  or  holder  of  stock  in  any  firm  or  coiporation,  the  entire 
capitnl  or  proi)erty  whereof  is  assessed,  must  not  be  assessed  individually  for  his 
stock  in  sucli  firm  or  corporation. 

3641.  I'rojjnrly  of  firm  or  rorporntion  assessed  xoliere  situated. 

SK.r.  :jr;41.  The  iiroperty  of  every  firm  and  corporation  must  be  assessed  in  the 
county  where  the  property  is  situate,  and  must  be  assessed  in  the  name  of  the 
firm  or  corporation. 


442 


EEVENUE.  3642-3G50 

3642.  Undistribuied  property  of  deceased  persons. 

Sec.  3642.  The  undistributed  or  unpaiiitioned  property  of  deceased  persons 
may  be  assessed  to  the  heirs,  guardians,  executors,  or  administrators;  and  a 
payment  of  taxes  made  by  either  binds  all  the  parties  in  interest  for  their  et^aal 
projDortions. 

3643.  Ferries  and  toll  b7-idges,  ichere  assessed.  Jfl. 
Sec,  3G43.  Ferries  and  toll  bridges  must  be  assessed  in  the  county  where  the    ^'^ 

tolls  are  collected. 

3644.  Vessels,  where  assessed. 

Sec.  3644.  All  vessels  of  every  class  which  are  by  law  required  to  be  regis"    ^ 
tered  must  be  assessed  and  the  taxes  thereon  paid  only  in  the  county,  or  city 
and  county,  where  the  same  are  registered,  enrolled,  or  licensed. 

3645.  Sa7ne. 

Sec.  3645.  Vessels  registered,  licensed,  or  enrolled  out  of  and  plying  in  whole 
or  in  part  in  the  waters  of  this  state,  the  owners  of  which  reside  in  this  state, 
must  be  assessed  in  this  state. 

3646.  Boats  and  small  craft. 

Sec.  3646.  All  boats  and  small  craft  not  required  to  be  registered,  must  be 
assessed  in  the  county  where  their  owner  resides. 

3647.  Property  and  money  in  litigation. 

Sec.  3647.  Money  and  property  in  litigation  in  possession  of  a  county  treas- 
urer, of  a  court,  county  clerk,  or  receiver,  must  be  assessed  to  such  treasurer, 
clerk,  or  receiver,  and  the  taxes  be  paid  thereon  under  the  direction  of  the 
court. 

3648.  Property  concealed,  misrepresented,  etc. 

Sec.  3648.  Any  property  willfully  concealed,  removed,  transfen-ed,  or  mis- 
represented by  the  owner  or  agent  thereof,  to  evade  taxation,  ujdou  discovery 
must  be  assessed  at  not  exceeding  ten  times  its  value,  and  the  assessment  so 
made  must  not  be  reduced  by  the  board  of  supervisors. 

3649.  Property  not  taxed  in  previous  year. 

Sec.  3649.  Any  property  discovered  by  the  assessor  to  have  escaped  assess- 
ment for  the  last  preceding  year,  if  such  property  is  in  the  ownership  or  under 
the  control  of  the  same  person  who  owned  or  controlled  it  for  such  preceding 
year,  may  be  assessed  at  double  its  value. 

3650.  Property,  how  listed.  ^ 
Sec.  3650.  The  assessor  must  prepare  an  assessment  book,  with  appropriate    y^ 

headings,  alphabetically  arranged,  in  which  must  be  listed  all  property  within 
the  county,  and  in  which  must  be  specified  in  separate  columns  under  the  a^j- 
propriate  head:  /E^: 

1.  The  name  of  the  person  to  whom  the  property  is  assessed; 

2.  Land  by  township,  range,  section,  or  fractional  section;  and  Avhen  such 
land  is  not  a  congressional  division  or  subdivision,  by  metes  and  bounds,  or 
other  description  sufficient  to  identify  it,  giving  an  estimate  of  the  number  of 
acres,  locality,  and  the  improvements  thereon; 

3.  City  and  town  lots,  naming  the  city  or  town,  and  the  number,  block,  ac- 
cording to  the  system  of  numbering  in  such  city  or  to\vn,  and  improvements 
thereon; 

443 


3650  POLITICAL  CODE. 

4.  All  personal  property,  sbowing  tlie  number,  kind,  amount,  and  quality; 
but  a  failure  to  enumerate  in  detail  such  personal  property  does  not  invalidate 
the  assessment; 

5.  The  cash  value  of  real  estate,  other  than  city  or  town  lots; 
G.  The  cash  value  of  improvements  on  such  real  estate; 

7.  The  cash  value  of  city  and  town  lots; 

8.  The  cash  value  of  improvements  on  city  and  town  lots; 

9.  The  cash  value  of  improvements  on  real  estate  assessed  to  persons  other 
than  the  owners  of  the  real  estate; 

10.  The  cash  value  of  all  personal  property,  exclusive  of  money; 

11.  Amount  of  money; 

12.  The  totiU  value  of  all  property; 

13.  The  fignre  oue  (1),  in  separate  columns,  opposite  the  name  of  every  person 
liable  to  pay  a  road  poll  tax  or  a  poll  tax; 

14.  Such  other  things  as  the  state  board  of  equalization  may  require.  The 
state  board  of  equalization  may  direct  the  book  to  be  otherwise  than  alphabet- 
ically arranged  in  the  city  and  county  of  San  Francisco.  [Amendment,  approved 
April  1,  1870;  Amendmenis  1875-G,  11;  took  effect  immediately .^"'^ 

Au  Act  coucerniug  the  assessment  of  animals. 

Approved  March  30,  1872;  1871-2,  754. 

Assessment  of  o)  am  ah  temporarily  pasturing  in  any  county. 

Section  1.  '^^1lenever  any  person  residing  in  any  county  of  the  state,  and 
owning  any  neat  cattle,  horses,  mules,  sheejD,  or  goats  therein,  shall  drive  the 
same  from  the  county  where  he  resides  into  any  other  county,  for  the  purpose 
of  temporarily  pasturing  the  same,  all  such  animals  shall  be  assessed  in  and  for 
the  county  where  such  owner  resides,  although  the  said  animals  shall  not  be  at 
the  time  of  said  assessment  in  said  county  in  which  he  ma}'  so  permanently 
reside;  and  such  owner  shall  include  such  animals  in  his  assessment  list,  and 
the  assessor  of  the  count}'  where  such  stock  are  so  temporarily  grazed  shall  list 
the  same,  with  a  fidl  description  of  each  kind  and  the  number  of  the  same;  and 
for  the  purpose  of  making  such  list,  the  assessor  shall  have  power,  and  it  is 
hereby  made  his  duty,  to  examine  on  oath  the  person  or  persons  owning  or 
having  charge  of  such  cattle,  horses,  mules,  sheep,  or  goats  touching  their 
number,  ownership,  and  to  whom  and  in  what  county,  if  any,  they  have  been 
assessed  for  taxation.  The  list  made  out  as  aforesaid  by  the  assessor^  together 
with  a  full  statement  of  the  same,  shall  be  signed  and  sworn  to  by  the  person 
or  persons  owniug  or  having  in  charge  such  stock. 

Dalies  of  ansesmrs  and  trea^iurert^. 

Sec.  2.  The  assessor  shall  file  a  copy  of  said  list  of  such  stock  with  the  county 
treasurer  of  his  roiinty,  and  another  copy  with  the  treasurer  of  the  county  in 
which  the  said  stock  was  first  hsted  and  assessed  for  taxation.  Upon  filing  the 
lists  aforesaid,  with  the  sworn  statement  therein  that  the  stock  specified  in  said 
lists  lias  been  pastured  or  used  in  the  county  mentioned  therein  during  the 
grazing  seas«)n,  with  the  treasurer  of  the  county  in  which  it  was  assessed  for 
taxation,  said  treasurer  sliall  i)ay,  on  the  order  of  the  treasurer  of  the  county  in 
whicli  the  stock  was  so  jiastured  or  used,  one  half  of  the  amount  of  taxes  paid 
in  on  the  said  stock,  less  tiie  cost  of  collection. 

(a)  Thcf.rl«ln»liM!cOon  h»a  flfU-en  BubdlvlnlonB,  of  (Iftccnth,   above   fourteenth,  did   not  have   the   word 

whi.  h  the  tlilrt.-.iith  waK  ah  f.ill-.wH;  "  l;».  The  total  "  Btate  "  nor  the  last  Htutenee,  relating  to  the  book  in 

value  of  all  i.r.iM-rty  afl<r  <qiializ:itloii   by  the  htate  the  city  and  county  of  San  Francisco, 
board."    The  above   tblrU-enth   vrau  fourteenth,  and 

444 


REVENUE.  3G50 

Sec.  3.  All  acts  or  parts  of  acts  in  conflict  with  this  act,  so  far  as  they  are  in 
conflict  with  this  act,  are  hereby  repealed. 

Sec.  4.  This  act  shall  take  effect  from  and  after  its  passage. 

Au  Act  to  regulate  the  assessment  of  migratory  herds  or  bands  of  live  stock,  and  to  provide 
for  au  equitable  distribution  of  the  taxes  derived  therefrom. 

Approved  March  16,  1874;  1873-4,  376. 

Assessment  of  migratory  sfoclc. 

Section  1.  AVhenever  the  assessor  assesses  any  live  stock,  he  must  demand 
of  the  person  who  gives  him  a  list  thereof  a  statement  under  oath,  showing: 
first,  whether  such  stock,  or  any  part  thereof,  will,  during  the  year  for  which 
such  assessment  is  being  made,  be  moved  to  another  county  for  pasturage,  and 
if  such  removal  is  to  be  made;  second,  the  county  to  which  such  stock  will  be 
taken;  and  third,  the  number,  kind,  and  value  thereof;  provided,  that  should 
such  person,  at  the  time  of  assessment,  not  have  deteiTuined  to  remove  such 
stock,  and  afterwards  should  make  such  removal,  it  shall  be  lawful  for  him  to 
make  the  statement  to  the  assessor  of  the  county  from  Avhich  such  stock  was 
removed,  as  in  this  section  provided,  through  the  United  States  mail. 

Duty  of  assessor. 

Sec  2.  The  assessor  must  fully  note  on  his  assessment  roll,  immediately 
below  the  description  of  the  property  listed  to  such  person:  first,  the  number 
and  kind  of  stock  to  be  removed;  second,  the  name  of  the  county  to  Avhich  such 
stock  is  to  be  removed;  and  third,  the  assessed  value  of  such  stock;  and  within 
ten  days  after  making  the  assessment,  he  must  transmit,  by  mail,  to  the  county 
treasurer  of  the  county  to  which  such  stock  is  to  be  taken,  a  copy  of  the  state- 
ment provided  for  in  section  one  of  this  act;  and  the  treasurer  must  enter  the 
same  in  a  book  to  be  kept  by  him  for  that  purjiose,  which  book  shall  be  known 
as  the  assessment  roll  of  migratory  stock,  and  shall  be  ojpeu  for  inspection. 

Collector's  account. 

Sec  3.  The  collector  must  keep  a  separate  account  of  all  taxes  collected  upon 
the  property  mentioned  in  this  act,  which  account  must  include  the  names  of 
the  persons,  description  of  the  property,  and  the  counties  to  which  such  stock 
has  been  driven,  and  at  the  time  of  his  settlement,  file  such  account  with  the 
treasurer  of  his  county;  and  the  treasurer  must  enter  the  same  in  a  book  to  be 
kept  by  him  for  that  purpose. 

Treasurer's  duty. 

Sec  4.  The  treasurer  receiving  moneys  so  collected,  must  set  apart  one  half 
of  the  sum  collected  for  county  purposes,  for  the  use,  resj^ectively,  of  the  dif- 
ferent counties  to  which  the  stock  has  been  sent  for  pasturage. 

Demand. 

Sec  5.  On  the  first  Monday  of  February  in  each  year,  the  treasurer  of  each 
county  to  which  any  list  provided  for  in  section  one  has  been  sent,  must  make 
out  a  demand  against  the  county  from  which  the  list  came,  for  one  half  of  the 
tax  assessed  for  county  purposes,  against  the  property  on  said  list,  and  must 
transmit  the  same  to  the  county  treasurer  of  the  county  from  which  the  list 
came,  who  must  pay  over  to  the  treasurer  making  the  demand,  all  moneys 
received  in  the  county  treasury,  to  the  use  of  the  county  from  which  the  demand 
came,  and  which  had  not  been  before  paid  over,  accompanied  with  a  duplicate 
of  the  statement  filed  by  the  tax  collector. 

445 


3C50  POLITICAL  CODE. 

How  made. 

Sec.  6.  The  demand  and  payment  provided  for  in  the  preceding  section  may 
be  made  through  any  regularly  organized  express  company. 

Mark  "paid." 

Sec.  7.  The  treasurer  receiving  money  and  statement,  as  provided  in  the  pre- 
ceding section,  must  pay  the  same  into  the  county  treasury,  and  must  mark  the 
vrord  "  piud"  on  the  assessment-roll  opposite  the  name  and  description  of  prop- 
erty corresponding  with  the  name  and  descrii^tion  of  property  included  in  such 
statement. 

JExamiiiafionfi  by  assessor. 

Sec.  8.  The  assessor  must  make  examinations  of  the  proj)erty  listed  in  said 
roll,  and  must  ascertain  whether  any  live. stock  not  on  such  roll  has  been  sent 
or  brought  into  his  county  for  pasturage,  and  if  he  finds  an}'  such,  must  assess 
it  at  its  full  cash  value;  and  in  that  case  the  fact  that  the  same  property  has 
been  assessed  in  another  county  for  the  same  year,  and  that  the  taxes  have  been 
paid  in  such  county,  shall  be  no  defense  to  any  j^roceeding  to  recover  the  taxes 
a.ssessed  in  the  county  in  which  such  stock  is  found,  unless  it  be  proved  that 
such  pei-son  has  complied  with  the  provisions  of  section  one  of  this  act,  and 
that  the  assessor  has  failed  to  make  the  return  thereof. 

Penally  for  failure  to  make  statements. 

Sec.  9.  Any  i:)erson  who  drives,  or  causes  to  be  driven,  any  live  stock  to 
another  county  for  pasturage,  and  fails  to  make  the  statement  provided  for  in 
section  one,  or  who  willfully  fails  to  include  in  such  statement  the  full  number 
or  value  of  stock  so  sent  or  driven,  shall  be  liable  to  a  penalty  of  five  hun- 
dred dollars,  to  be  recovered  in  the  district  court  of  the  county  to  which 
said  stock  is  sent  or  driven;  and  such  suit  must  be  instituted  by  the  district 
attorney  of  said  county  in  the  name  of  the  people  of  the  State  of  California, 
upon  the  information  of  any  responsible  person,  and  one  half  of  the  penalty 
recovered  must  be  j^aid  to  the  person  on  whose  information  the  suit  was  in- 
stituted. 

ifisdeineanor. 

Sec.  10.  Any  officer  who  shall  fail,  neglect,  or  refuse  to  perform  the  duties 
required  of  him  by  this  act,  shall  be  guilty  of  a  misdemeanor,  and,  upon  con- 
viction, shall  be  fined  a  sum  of  not  less  than  fifty  nor  more  than  five  hundred 
dollars. 

Print  and  transmit. 

Sec.  11.  The  state  board  of  equalization  must,  immediately  after  the  passage 
of  this  act,  have  it  printed,  and  transmit  twenty  copies  thereof  to  each  assessor 
in  the  state. 

Sec,  12.  This  act  shall  take  effect  from  and  after  its  passage. 

An  Act  siii.itli-meutjii-y  to  the  foregoing  act  of  March  IG,  187-i. 

Approved  April  1,  1876;  1875-C,  707. 

Apportionment  of  assessments. 

SfccTJo.v  1.  County  treasurers  to  whom  a  list  is  sent  from  the  county  of  Cala- 
veras, under  the  jjrovisions  of  the  above-mentioned  act,  shall  make  out  a  de- 
maud  a;(ainst  the  treasurer  of  the  county  of  Calaveras  for  such  a  portion  of  one 
half  of  the  tax  asses.sed  and  collected  for  county  purposes  as  would  have  been 
assessed  and  collected  at  the  rate  of  taxation  in  the  county  making  the  demand 
bad  the  proi)erty  been  assessed  therein. 

Sec  2.  This  act  shall  be  in  full  force  from  and  after  its  passage. 

446 


REVENUE. 


3G51-3G52 


3651.  Form  of  assessment  book. 

Sec.  3G51.  The  form  of  the  assessment  book  must  be  substantially  as  follows: 


■^ 


o 

f|> 

•^ 

^ 

■** 

<s 

s.. 

'« 

< 

>. 

^ 

o 

s 

S 

,o 

^:v 

<o 

cc 

c 

S 

V 

>, 

o 

<1J 

«, 

!^ 

A, 

^1 

■*** 

V 

^ 

o 

o 

ft 

^ 

Kemarks, . . . 



Poll  tax 

CO 

Total  tax 

0> 

Total  value  of  all  Droneitv . 

■ff 

Amount  of  monev 

■fi 

Value  of  personal  iiroDeitv 

■'ff 

Value  of  imp] 
the  owners 

•ovements  on  real  estate  assessed  to  persons  other  than 
of  the  real  estate   

(fy 

Value  of  improvements  thereon 

^ 

Value  of  city 

and  town  lots 

Value  of  Improvements  thereon 

^ 

Value  of  real  estate  other  than  citv  and  town  lots 

^ 

Number  of  acres .          .    

s 

o 

M 
(^ 

O 

o 

H 
ft 

o 

M 
ft 

o 

go 

Block  

o 

<a 

Lot 

1 

IS 

Fraction 

H 

O    0 

■S  n 

Range,  E.  or  W 

S 

Township,  N.  or  S 

Si    =5 

Section  

Subdivision  of  section 

Eesid 

X.  3 

Taxpayers'  n 

|| 

When  tax  pa 

id           

§1 

In  the  city  and  county  of  San  Francisco,  the  form  book  shall  be  such  as  may 
be  directed  by  the  state  board  of  equalization.  ^Amendment,  approved  April  1, 
1876;  Amendments  l^n^-Q,  11;  took  effect  immediately .^"-^ 

3652.  Assessment  hook — Assessor's  oath. 

Sec  3652.  On  or  before  the  first  Monday  of  July  in  each  year,  the  assessor 
must  complete  his  assessment  book.  He  and  his  deputies  must  take  and  sub- 
scribe an  affidavit  in  the  assessment  book,  to  be  substantially  as  follows: 

"I, ,  assessor  of  (or  deputy  assessor,  as  the  case  may  be) county, 

do  swear  that  between  the  first  Monday  in  March  and  the  first  Monday  in  July, 
eighteen  hundred  and ■,  I  have  made  diligent  inquiry  and  examination  to 


(a)  The  original  section  did  not  have  the  sentence 
at  the  end  in  reference  to  the  city  and  county  of  San 
Francisco. 

It  was  previously  amended  by  act  of  March  2i,  1874; 

447 


Amendments  1873-4,  145,  so  as  to  read  like  the  amend- 
ment in  the  text  except  that  it  had  a  eubdlvi^idU  after 
"Total  tax"  of  '-Total  value  of  all  property  after 
equalization  by  the  state  board  of  equalization." 


3652-3G58  POLITICAL  CODE. 

ascertain  all  tbe  property  within  the  county  (or  within  the  subdivision  thereof 
assessed  by  me,  as  the  ease  may  be),  subject  to  taxation,  and  that  I  have 
assessed  it  on  the  assessment  book,  equally  and  uniformly,  according  to  the  best 
of  my  judgment,  iufoiTuation,  and  belief,  at  its  full  cash  value;  and  that  I  have 
faithfully  complied  with  all  the  duties  imposed  on  the  assessor  under  the  rev- 
enue laws;  and  that  I  have  not  imposed  any  unjust  assessment  through  malice 
or  ill  will,  nor  allowed  any  one  to  escape  a  just  and  equal  assessment  through 
favor  or  reward." 

But  the  failure  to  take  or  subscribe  such  an  affidavit  or  any  affidavit,  will  not 
in  any  manner  affect  the  validity  of  the  assessment. 

3653.  Map  of  properly  assessed  in  cities  or  towns. 

Sec.  3U53,  The  assessor  must,  when  directed  so  to  do  by  the  board  of  suj^er- 
visors,  in  a  maj)  book  nuike  a  plan  of  the  various  blocks  within  any  incorporated 
city  or  town,  and  mark  thereon  in  each  subdivision  the  name  of  the  i:)erson  to 
whom  it  is  assessed. 

3654.  Assessment  and  map  books  delivered  to  and  kept  by  clerk  of  supervisors. 
SiA".  3G54.     As  soon  as  completed,  the  assessment  book,  together  with  the 

map  book  and  statements,  must  be  delivered  to  the  clerk  of  the  board  of  super- 
visors, who  must  immediate!}'  give  notice  thereof  and  of  the  time  the  board  will 
meet  to  equalize  assessments,  by  publication  in  a  newspaper,  if  any  is  printed 
in  the  county;  if  none,  then  in  such  manner  as  the  board  may  direct;  and  in 
the  meantime  the  assessment  book  must  remain  in  his  office  for  the  inspection 
of  all  persons  interested. 

3655.  Statement  by  assessor  to  state  board  of  equalization ,  to  slioio  ivhat,  tehen  made. 
Sec.  3655.  On  the  first  Monday  of  July  in  each  year,  the  assessor  of  each 

county  must  transmit  to  the  state  board  of  equalization  a  statement  showing: 

1.  The  several  kinds  of  personal  property; 

2.  The  average  and  total  value  of  each  kind; 

3.  The  number  of  live  stock,  number  of  bushels  of  grain,  number  of  gallons 
of  wines  or  liquors,  number  of  pounds  or  tons  of  any  article  sold  by  the  pound 
or  ton; 

4.  When  practicable,  the  separate  value  of  each  class  of  land,  specifj'ing  the 
classes  and  the  number  of  acres  in  each. 

3656.  Penally  for  failure  of  assessor  to  complete  assessment  book  or  transmit  state- 

ment. 

Sec.  3G50.  Every  assessor  who  fails  to  complete  his  assessment  book  or  who 
fails  to  transmit  the  statement  mentioned  in  the  preceding  section  to  the  state 
board  of  etjualization,  forfeits  the  sum  of  one  thousand  dollars,  to  be  recovered 
on  his  official  bond,  for  the  use  of  the  county. 

3657.  Persons  claiming  ownership  of  property  and  desiring  to  be  assessed. 

Skc.  3(557,  Lands  once  described  on  the  assessment  book  need  not  be  de- 
Bcribeil  a  second  time,  but  any  person  claiming  the  same,  and  desiring  to  be 
assessfd  therefor,  may  have  his  name  inserted  with  that  of  the  person  to  whom 
such  land  is  assessed. 

3658.  Supervisors  to  furnish  assessor  with  maps.  *> 

SKf.  3G58.  The  board  of  supervisors  must  provide  maps  for  the  use  of  the 
asscKKor,  Hhowing  the  juivate  lands  owned  or  claimed  in  the  county,  and,  if 
Bun-eyed  under  authority  of  the  United  States,  the  divisions  and  subdivisions 
of  the  hurvf'v;  if  held  under  Spanish  grants,  the  exterior  boundaries  of  such 
grants  and  the  numljer  of  iicrcs  claimed.  Maps  of  cities  and  villages,  or  school 
districts,  may  in  like  manner  be  provided.  The  cost  of  making  such  maps  is  a 
county  charge,  and  mubt  be  i)aid  from  the  county  general  fund. 

448 


REVENUE.  3659-3772 

3659.  Limits  of  land  sold  by  stale  to  be  Iraiismitted  to  assessor  of  county  xcliere  prop- 

erty situated. 
Sec.  3659.  On  or  before  the  first  Monday  in  March  in  each  year  the  surveyor- 
general  of  the  state  and  the  tide  land  commissioners  must  make  out  and  trans- 
mit to  the  assessor  of  each  county  where  lands  or  lots  lie  that  may  have  been 
sold  by  the  state,  for  which  certificates  of  jDurchase,  patents,  or  deeds  liave 
issued  during  the  year  preceding,  certified  lists  of  such  lands  or  lots,  giving  a 
description  thereof  by  congressional  divisions  or  subdivisions,  or  lots  and  blocks, 
together  with  the  names  of  the  purchasers  thereof. 

3660.  When  assessor  liable  for  taxes  on  tniassessed  ])roperty . 

Sec.  3660.  The  assessor  and  his  sureties  are  liable  on  his  official  bonds  for 
all  taxes  on  property  within  the  county,  which,  through  his  willful  failure  or 
neglect,  is  unassessed. 

3661.  District  attorney  to  prosecute  assessor  for  unpaid  taxes,  ivhen. 

Sec,  3661.  The  district  attorney  must,  after  the  assessor  completes  the  assess- 
ment book  for  the  year,  commence  an  action  on  the  assessor's  bond  for  the 
amount  of  taxes  lost  from  such  willful  failure  or  neglect. 
8662.  Judgment,  ivhen  entered  against  assessor. 

Sec.  3662.  On  the  trial  of  such  action,  the  value  of  the  i^roperty  unassessed 
being  shown,  judgment  for  the  amount  of  taxes  that  should  have  been  collected 
thereon  must  be  entered. 
3663.  Boiling-stock  and  improvements  of  railroads,  hmv  assessed. 

Sec.  3663.  Where  the  railroad  of  a  railroad  corjioration  lies  in  several  coun- 
ties, its  rolling-stock  must  be  aj)portioned  between  them  so  that  a  portion 
thereof  may  be  assessed  in  each  county,  and  each  county's  portion  must  bear 
to  the  whole  rolling-stock  the  same  ratio  which  the  number  of  miles  of  the  road 
in  such  county  bears  to  the  whole  number  of  miles  of  such  road  h'iug  in  this 
state.  The  land  occupied  and  claimed  as  the  right  of  way,  with  the  track  and 
all  the  substructures  and  superstructures  which  support  the  same,  must  be 
assessed  as  a  whole,  and  as  real  estate,  without  separating  the  same  into  lands 
and  improvements,  at  a  certain  sum  per  mile.  The  improvements,  other  than 
the  track  and  the  substru.ctures  and  superstructures  which  support  the  same, 
whether  situated  upon  land  occupied  and  claimed  as  the  right  of  wa}-,  or  on 
other  lands,  must  be  sej^arately  assessed.  Water  ditches  constructed  for 
mining,  manufacturing,  or  irrigation  purposes,  and  wagon  or  turnpike  toll 
roads,  with  all  improvements  attached  to  such  j)roperties,  must  be  listed  by 
the  assessor  as  real  estate,  and  as  a  whole,  without  separating  the  land  and  the 
improvements,  either  in  the  description  or  valuation  of  the  same.  [Amendme^^t, 
approved  March  30,  1874;  Amendments  1873-4,  158;  took  effect  sixtieth  day  from 


"??-. 


,,    —      II       y  o    ' "  "^ 

0UNTI_J50AKDS  OF  EquALIZAWON  .  i_i^jj|_^jj .  .  .  .^ "•  •  \J  i^^PI^ 

iiATE  Board  of  Equalizatiw -....'.'. • ■3692 

ARTICLE  I. 

COUNTY  BOAKDS  OF  EQUALIZATION. 

3672.  Sujjervisors,  ivhen  to  equalize  assessment. 

Sec.  3672.  The  board  of  supervisors  of  each  county  must  meet  on  the  first 

(a)  The  original  section  was  added  to  the  code  by     of  one  sentence  only,  the  first  of  the  above  ameud- 
act  apjiroved  March  27,  1872;  1871-2,  586.     It  consisted     ment. 

29  449 


3G72-3G80  POLITICAL  CODE. 

Monday  of  Juh'  in  each  year,  to  examine  the  assessment-book  and  equalize  the 
assessment  of  property  in  the  county.  It  must  continue  in  session  for  that  pur- 
pose from  time  to  time  until  the  business  of  equalization  is  disposed  of,  but  not 
later  than  the  fourth  Monday  in  July. 

3673.  S(ii»>rru«>rs  empuwfred  to  correct  assessment.  ^ 

Sec.  3073.  The  board  has  power  to  determine  all  complaints  in  regard  to  the 
assessed  value  of  property,  and  may,  except  as  prohibited  in  this  title,  correct 
auv  valuation  by  adding  or  deducting  such  sum  as  may  be  necessary  to  make  it 
conform  to  the  actual  cash  value. 

3674.  Xo  reduction  to  be  made  unless  on  application  of  person  assessed. 

Sec.  3(374.  No  reduction  must  be  made  in  the  valuation  of  property,  unless 
the  party  aliected  therel)y  or  his  agent  makes  and  files  with  the  board  a  written 
application  therefor,  verified  by  his  oath  showing  the  facts  upon  which  it  is 
claimed  such  reduction  should  be  made. 

3675.  Kramination  of  person  assessed  by  supervisors  for  purposes  of  equalization. 
Sec  3675.  Before  the  board  grants  the  application  or  makes  any  reduction 

applied  for,  it  must  first  examine,  on  oath,  the  person  or  the  agent  making  the 
application  touching  the  value  of  the  property  of  such  person.  No  reduction 
must  be  made  unless  sucli  person  or  the  agent  making  the  application  attends 
and  answers  all  questions  pertinent  to  the  inquiry. 

3676.  Supervisors  may  subpoena' witnesses  and  take  evidence. 

Skc.  3G7G.  Upon  the  hearing  of  the  application  the  board  may  subpoena  such 
witnesses,  hear  and  take  such  evidence  in  relation  to  the  subject  pending,  as  in 
its  discretion  it  may  deem  proper. 

3677.  Ai^sessor  and  deputy  to  attend  upon  hearing  of  application. 

Sec.  3G77.  During  the  session  of  the  board  the  assessor  and  any  deputy  whose 
testimony  is  needed  must  be  present,  and  may  make  any  statement,  or  intro- 
duce and  examine  witnesses  on  questions  before  the  board. 

3673.   County  recorder  to  attend  with  abstract  of  titles. 

Sec  3()78.  The  county  recorder  must,  when  required  during  the  session, 
attend  on  the  board  with  an  abstract  of  all  unsatisfied  mortgages  and  trust  deeds 
given  to  secure  the  payment  of  loans  and  other  liens  on  record  in  his  office. 

3679.  Supervisors  to  use  information  and  direct  entry  of  mortgages,  etc. 

Sec.  8G79.  The  board  must  use  the  abstract  and  all  other  information  it  may 
gain  from  the  records  of  the  county  recorder  or  elsewhere  in  ecjualizing  the 
asKe.<smcnt  of  the  property  of  the  county,  and  may  require  the  assessor  to 
enter  upon  the  assessment  book  any  property'  which  has  not  been  assessed;  and 
any  assessment  made  as  prescribed  in  this  section  has  the  same  force  and  eflect 
as  if  made  by  the  assessor  before  the  delivery  of  the  assessment  book  to  the 
clerk  (»f  the  b«)ard;  Init  no  person  must  be  assessed  under  this  section  except  a 
resid».'nt  of  (lie  county. 

3680.  Preservation  of  evidence  taken  before  board. 

Sl;c  3G8().  In  uU  cases  where  the  board  either  adds  to,  or  decreases,  or  alters 
the  valuation  of  property  made  by  the  assessor,  the  clerk  of  the  board  must 
note  down  and  presei-ve,  substantially,  the  evidence  upon  which  such  addition, 
decrease,  or  alteration  was  leased,  \yhnendment,  approved  March  30,  1874; 
Amendments  1873-4,  lo'J;  took  cjfecl  sixtieth  day  after  'passage. '•"'^ 

(a)  The  origiDKl  section  h«d  an  additiocdl  clause  as  muBt  doclnre  the  legal  principles  it  has  licen  governed 
follows:  by  in  BSiertuining  the  valuation  adopted  by  it." 

"And  upon  the  demand  of  the  applicant  the  bo:ird 

450 


REVENUE.  3G81-3G92 

8881.  Supe7-risors  may  direct  neio  ai<sesxmeri(s  (obe  made,  etc. — Notice  to  persons 
interested. 

Sec.  3G81.  During  the  session  of  the  board,  it  may  direct  the  assessor  to 
assess  any  taxable  property  that  has  escaped  assessment,  or  to  add  to  the 
amount,  number,  or  quantity  of  property  when  a  false  or  incomplete  list  has 
been  rerj^dered,  and  to  make  and  enter  new  assessments  (at  the  same  time  can- 
celing previous  entries)  when  any  assessment  m.ade  by  him  is  deemed  by  the 
board  so  incomplete  as  to  render  doubtful  the  collection  of  the  tax;  but  the 
clerk  must  notify  all  i^ersons  interested,  by  letter  dei^osited  in  the  post-office 
or  exjDress,  postpaid  and  addressed  to  the  person  interested,  at  least  ten  days 
before  action  taken,  of  the  day  fixed  when  the  matter  will  be  investigated. 

3682.   Clerk  of  supervisms  to  record  proceedings,  alterations,  etc. — Oath  of  clerk. 

Sec.  3682.  The  clerk  of  the  board  must  record  in  a  book  to  be  kept  for  that 
purpose  all  changes,  corrections,  and  orders  made  by  the  board,  and  during  its 
session,  or  as  soon  as  possible  after  its  adjournment,  must  enter  upon  the 
assessment  book  all  changes  and  corrections  made  by  the  board,  and  on  or 
before  the  first  Monday  of  August  must  deliver  the  assessment  so  corrected  to 
the  county  auditor,  and  accompany  the  same  with  an  affidavit  thereto  affixed, 
subscribed  by  him  as  follows: 

"I, ,  do  swear  that,  as    clerk   of -the  board  of   supervisors  of 

county,  I  have  kept  correct  minutes  of  all  the  acts  of  the  board  touching  altera- 
tions in  the  assessment  book;  that  all  alterations  agreed  to  or  directed  to  be 
made  have  been  made  and  entered  in  the  book,  and  that  no  changes  or  altera- 
tions have  been  made  therein  except  those  authorized." 


ARTICLE  II. 

STATE    BOAKD    OF    EQUALIZATION. 

3692.   General  powers  of  hoard. 

Sec.  3692.  The  powers  and  duties  of  the  state  board  of  equalization  are  as 
follows: 

1.  To  prescribe  rules  for  its  own  government  and  for  the  transaction  of  its 
business; 

2.  To  prescribe  rules  and  regulations  to  govern  supervisors  when  equalizing 
and  assessors  when  assessing; 

3.  To  make  out,  prepare,  and  enforce  the  use  of  forms  in  relation  to  the 
assessment  of  proj^erty; 

4.  To  hold  such  special  meetings  as  the  chairman  may  direct; 

5.  To  meet  at  any  time  between  the  first  and  third  Mondays  in  September 
in  each  year,  and  at  such  meetings  to  fix  the  rate  of  state  taxation; 

6.  To  appoint  a  clerk,  when  necessary,  prescribe  and  enforce  his  duties; 

7 .  To  report  to  the  governor  annually  a  statement  showing : 
First.  The  acreage  of  each  county  in  the  state  that  is  assessed; 
Second.  The  amount  assessed  per  acre; 

Third..  The  aggregate  value  of  all  town  and  city  lots; 

Fourth.  The  aggregate  value  of  all  real  estate  in  the  state; 

Fifth.  The  kinds  of  personal  property  in  each  county,  and  the  value  of  each 
kind; 

Sixth.  The  aggregate  value  of  all  personal  property  in  the  state; 

Seventh.  Any  information  relative  to  the  assessment  of  property  and  the 
collection  of  revenue; 

Eighth.  Such  further  suggestions  as  it  shall  deem  proper; 

451 


3692-3098  POLITICAL  CODE. 

8.  To  keep  a  record  of  all  its  proceedings.     [Aviendment,  approved  April  1, 
187G;  AmeyidmenL<lS15-(i,  11;  took  effect  immedicdely}^^ 

3693.  [Sec.  3693  was  repealed  by  act  approved  April  1,  187G;  Amendments 
1875-6,  11;  took  effect  immediately.'"'] 

3694.  E'jtudizcdion,  how  made  ivhen  countxj  auditor  fails  to  forivard  statement. 
Slc.  3094.  If  the  county  auditor  fails  to  forward  to  the  state  board  of  equali- 
zation the  statement  provided  for  in  section  3728,  the  board  must  obtain  the 
statement  or  so  much  thereof  as  is  necessary  from  other  and  reliable  sources. 
[Amendment,  approved  April  1,  1870;  Amendments  1^1  ^-Q>,  11;  took  eff'ect  imme- 
dialehj.''' 

3695    I  Sec.  3095  was  repealed  by  act  approved  April  1,  1870;  Amendments 
1875-6,  11;  took  effect  immediately.]  ^''7^-^  adcUcL  /f.'o  /^o-fu  %y 

3696.  Board  to  notify  supervisors  amount  of  tax  to  be  levied. 

Sec  3090.  Between  the  first  and  third  Mondays  in  September  of  each  year 
the  board  must  determine  the  rate  of  state  tax  to  be  levied  and  collected  upon 
the  assessed  valuation  of  the  property  of  the  state,  which,  after  allowing  fifteen 
per  cent,  for  delinquencies  in,  and  costs  of  collection  of  taxes,  must  be  sufficient 
to  i-aise  the  specific  amount  of  revenue  directed  to  be  raised  by  the  legislature 
for  state  purposes.  The  board  must  immediately  thereafter  transmit  to  the 
board  of  supervisors  of  each  county  a  statement  of  such  rate,  and  upon  its 
receipt,  the  county  clerk  must,  in  writing,  notify  the  state  board  of  equalization 
thereof.  [Amendment,  approved  April  1,  1870;  Amendments  1875-0,  11;  took 
eff'ect  immediately.^^'' 

3697.  Penally  for  refusing  to  obey  rides  and  regulations  of  board. 

Sec.  36t'7.  Eveiy  person  served  with  a  subpcena  who  failsi  or  neglects,  with- 
out just  excuse,  to  obey  it,  and  every  officer  Avho  refuses  to  obey  the  rules  and 
i-egulations  prescribed  by  the  board,  or  to  perform  the  duties  prescribed  therein, 
forfeits  to  the  state  five  hundred  dollars,  to  be  recovered  by  action  in  the  name 
of  tlie  board,  which  action  may  be  commenced  and  tried  in  any  county  of  the 
state. 

3698.  District  attorney  to  pn-osecute  assessor  fraudulently  assei'sivg  proj^erty. 

Sec  3098.  Whenever  the  state  board  of  equalization  is  satisfied  that  the 
assessor  or  a  deputy  assessor  of   any  county  has  knowingly,  fraudulently,  or 

(n)  The  original  Pectidn   had   twelve  subdivisions,  to  and  including  the  words  "  except  money,"  and  then 

the  lirht  thru- and  the  luht  two  being  the  same  as  above,  proceeded  "and  solvent  debts;  such  per  centum,  re- 

Tlie  "itherh  were  aH  follows:  spectively,  us  is  sufficient  to  raise  or  reduce  it  to  the 

4.  T"  hi'ld  rejjiiliir  Jiiiaithly  meetingsat  the  state  cap-  lull  cash  value.     In  raising  or  reducing  the  valuation 

Itol  •■n  the  i-emnd  Monday  in  each  month,  and  such  of  personal  property,  the  board  may  confine  sucli  rals- 

hlH-i  ial  njeiiin«s  ah  the  ihairman  may  direct;    !i.  To  ing  or  reduitiou  to  one  or  more  kinds  of  personal 

ln«-«t  at  thi-  Kt»t<-  cupitol  on  the  third  Monday  in  August,  property,  not  exceeding  six  in  number." 

anl  ri-utain  hi  hehsion  until  the  third  Monday  in  Sep-  (c)   The  original  s<  ction  after  the  word  "  must"  had 

ti'iiilxr:  (J.  At  BHch  meeting  to  equfili/.e  the  valuation  the  words  "make  the  eiiuabzation  from  any  iuforma- 

of  (I  ,    i.r,  1,.  •i\  i,f  the  Fevi-ral  counties  in  the  state,  tion  it  can  obtain." 

an'l                          f  state  taxuti<iii;  7.  To  visit  asa  board,  ((/)  Kcpealed  section: 

'■r  i                           .nl  nKiiibirs  thereof, the  several  couu-  Skc.  aoys.  When  the  equalization  among  the  several 

tl<  f     .                     ■■'•'•■'•  iiurposc of  insi'pctlng  the  proi>-  counties  is  completed,  the  clerk  of  the  board  must 

erty  and  !■                         .lue  Ihereol;  H.  To  cull  bcfon-  it  transmit  to  each  county  auditor  a  statement  of  the  per 

or  any  U'                       ■   on  smli  visit,  any  oflicers  of  the  centum  to  be  added  to  or  deducted  from  the  valuation 

county,  a.'..  ■■         ...      them  to  ])roiiiice  any  jiublic  rec-  of  the  property  of  his  county. 

cinld  in  tlii-ir  •ukLhiv;  It.  To  ihMie  subpunas  for  the  at-  (>■)  The  original  section  read  like  the  section  as  given 

ft-ndan<<of  wltn'-KW-s.  orlh.  prodUiUonof  books  before  below,  except  that  iubtead  of  "  lighteeu  per  cent,  for 

th<'  louril  or  any  iiieiiiber  thi  nof— which  subixi-nas  delinquencies  in,  and  cost  of,"  it  had  the  words  "for 

muht  be  Klgnwl  by  a  member  of  the  board  and  may  be  delinquency  in  the." 

(MTvcd  )iy  anypePHon;  10.  To  appoint  a  clerk,  prescribe  U  was  amended  by  act  of  March  24,1874;  Amend- 

aud  .  nfon  <•  his  duties.  ments  lH7;{-t,  147,  so  as  to  read  like  the  section  as  given 

ilj)  lUpeabd  Hiiilon:  below,  except  that  it  had  the  word  "  twelve  "  instead 

S»;<:,  :)'.'.'.).  When:  the  prf)iKTty  1h  found  to  be  assessed  of  "  eighteen." 

ab<ai- or  Vx-low  Its  full  cahfi  vnlu'-.  the  board  must  add  It  was  again   amended  by  act  of  March   oO,   1874; 

to  or  deduct  from  the  valuation  of:  Am<ndments  ]87;i-4,  1.59,  so  as  to  read  as  follows: 

1.  The  nnl  chtale;  .Skc.  H(;i)6.  At  the  same  time  the  board  must  deter- 

•2.  Iiiijirovcmi-ntH  uj.on  i>urh  n-al  estate;  mine  and  transmit  to  the  board  of  su|  ervisors  of  each 

.1.  The  jH  TKonnl  pnjp«-rty.  except  money;  county  the  rate  of  state  tax  to  be  levied  and  collected, 

4.  The  amount  of  money;  which,  after  allowing  eighteen  per  cent.  fi>r  deiinquen- 

Su.  h  p«-r  centum,  respectively.  88  1b  Bufllcient  to  raise  cles  in.  and  cost  of  collection  of  tax.  s,  must  be  suffi- 

nr  ridure  It  to  the  full  cash  value.  cient  to  raise  the  specific  amount  of  revenue  directed 

It  was  amended  by  «<  t  of  March  21,1874;  Amend-  to  be  raised  by  the  legislature  for  state  ijurpose.s. 
ments  1«7:'.  4    it:   >~o  h>- to  read  like  the  original  down 

452 


REVENUE.  3(;98-3705 

corntptlj  assessed  any  property  l>elow  its  actual  cash  valvic,  it  must  iuiniediatel}' 
inform  the  district  attorney  of  such  county  in  writinj^'  of  the  facts  that  may  have 
come  to  its  knowledge,  with  a  request  that  such  assessor  or  deputy  assessor  be 
prosecuted,  and  the  district  attorney  must  at  once  comply  with  such  request. 
3699.   Clerk  and  members  of  board  marj  administer  oaths. 

Sec.  3699.  The  clerk  or  any  member  of  the  board  may  administer  and  certify 
oaths. 

[Secs.  3700  and  3701  were  repealed  by  act  approved  April  1,  187G;  Ajpaend- 
ments  1875-6,  11;  took  effect  immediately.'"^! /^3ic/<^^^^/^r^-  ^y/^^'/'- 
„_-„     „  ^,      /if  i  ■A'7  0      ■'     ^7' 

o702.  Expejises. 

Sec.  3702.  All  necessary  expenses  in  carrying  into  effect  the  provisions  of  this   ' 
title  must  be  allowed  the  board,  not  to  exceed  annually  one  thousand  dollars, 
the  amount  thereof  to  be  audited  and  allowed  by  the  board  of  examiners,  and 
paid  out  of  the  state  treasury.     [Amendment,  a^jproved  April  1,  1876;   Amend- 
ments 1875-6,  11;  took  effect  immediately.'-^'' 

3703.  [Sec.  3703  was  repealed  by  act  approved  April  1,  1876;  Amendments 
1875-6,  11;  took  effect  immediately.'"*] 

3704.  Duty  of  board  upon  failure  of  county  boards  to  apjwint  assessors,  etc. 
Sec.  3704.  If  the  board  of  supervisors  of  any  county  fails  or  refuses  either: 

1.  To  allow  the  assessor  to  appoint  a  sufficient  number  of  deputies  to  make 
the  assessment;  or, 

2.  To  furnish  the  proper  books  or  blanks  for  his  use;  or, 

3.  To  furnish  the  assessor  necessary  office  room; 

— Then  the  state  board  of  equalization  may,  upon  the  application  of  the  asses- 
sor, make  the  allowance,  or  furnish  the  proper  books,  blanks,  or  office  room; 
and  all  the  expense  incurred  in  carrying  into  effect  the  provisions  of  this  sec- 
tion must,  by  the  secretary  of  the  board,  be  certified  to  the  controller,  who 
must,  in  his  next  settlement  with  the  county  treasurer  of  any  such  county,  re- 
quire such  treasurer  to  pay  the  amount  out  of  any  funds  belonging  to  such 
county. 

Au  Act  to  protect  the  county  treasuries  of  certain  counties. 

Approved  March  16,  1874;  1873-4,  393. 

Assesso7S  of  certain  counties  to  pay  deputies. 

Section  1.  If  the  assessor  of  Siskiyou,  Calaveras,  Amador,  or  Alpine  county 
appoints  any  deputies  by  virtue  of  authority  derived  from  the  state  board  of 
equalization,  acting  in  jDursuance  of  powers  conferred  on  them  by  section  three 
thousand  seven  hundred  and  four  of  the  Political  Code,  or  by  virtue  of  author- 
ity derived  from  the  board  of  sujoervisors  of  his  county,  acting  in  pursuance  of 
powers  conferred  on  them  by  section  three  thousand  eight  hundred  and  ninet}'- 
four  of  the  Political  Code,  the  compensation  of  such  deputies  must  be  paid  by 
the  assessor. 

Sec  2.  This  act  must  take  effect  and  be  in  force  from  and  after  its  passage. 

3705.  State  board  may  extend  time. 

Sec  3705.  The  state  board  of  equalization  may,  by  an  order  entered  upouKs 
minutes,  and  certified  to  the  county  auditor  of  any  county,  extend,  for  not  ex- 
ceeding thirty  days,  the  time  fixed  in  this  title  for  the  performance  of  any  act. 

(a)  Repealed  eections:  tai-y  thereof  is  entitled  to  repayment  of  all  expenses 

Sec.  3700.  The  anuuid  salary  of  each  member  of  the  incurred  by  him  in  traveling  in  tlie  disoharge  of  his 

board  appointed  by  the  governor  is  thirty-six  hundred  duties,  not  to  exceed  one  tliousan.l  dollars  each,  the 

dollars,  and  the  annual  salary  of  the  ex  officio  member  amount  thereof  to  be  audited  and  allowed  by  the  board 

is  twelve  hundred  dollars.  of  examiners  and  paid  out  of  the  state  treasury. 

Sec.  ;4701.  The  annual  salary  of  the  clerk  is  twenty-  (c)  Repealed  sectin:          „  ,^      ,  ^    ,        ,    , 

four  hundred  dollars  Sec.  3703.  Each  miniber  of  the  state  board  of  eqiial- 

(6)  Original  section:  ization  appointed  by  the  governor  must   execute  an 

Sec.  37u2.  Each  member  of  the  board  and  the  secre-  olflcial  bond  in  the  sum  of  ten  thousand  dollars. 

453 


3713-3717  POLITICAL  CODE. 

CHAPTEE  Y. 

LEVY   OF   TAXES. 

3713.  Amounfs  required  for  several  funds. 

Sec.  3713.  The  state  board  of  equalization  must,  for  state  purposes,  for  the 
twentv-ei-^'htb  and  tAventy-ninth  fiscal  years,  fix  sucli  an  ad  yalorem  rate  of  tax- 
ation upon  each  one  hundred  dollars  of  taxable  property  of  this  state,  as  will 
raise  fur  the  twenty-eighth  fiscal  year: 

1.  For  the  general  fund,  two  million  two  hundred  and  twenty  thousand 
dollars; 

2.  For  the  school  fund,  one  million  two  hundred  and  one  thousand  dollars; 

3.  For  the  interest  and  sinking  fund,  three  huncked  and  fifteen  thousand 
dollars. 

And  for  the  twenty-ninth  fiscal  j^ear: 

1.  For  the  general  fund,  one  million  six  hundred  and  eight  thousand  dollars; 

2.  For  the  school  fund,  one  million  three  hundred  thousand  dollars; 

3.  For  the  interest  and  sinking  fund,  three  hundred  and  fifteen  thousand 
dollars.  [Arnendmerd,  approved  April  3,  187G;  Amendmerds  1875-6,  60  ;  took 
effect  from  passage}^^ 

3714.  Supervisors  to  regulate  county  rate  of  taxation. 

Sec  3714.  The  board  of  sujDervisors  of  each  county  must,  on  the  first  Monday 
of  October,  fix  the  rate  of  county  taxes,  designating  the  number  of  cents  on 
each  hundred  dollars  of  property  levied  for  each  fund;  and  must  levy  the  state 
and  county  taxes  uj^on  the  taxable  property  of  the  county. 

3715.  ]\lien  supervi'^ors  fail  to  levy  such  taxes,  etc. 

Sec.  3715.  The  action  of  the  state  board  of  equalization,  in  fixing  the  rate  of 
taxation  for  state  jjurposes,  is,  in  the  absence  of  action  by  the  board  of  super- 
visors, a  valid  levy  of  the  rate  so  fixed,  and  imposes  upon  the  auditor,  tax  col- 
lector and  all  other  ofiicers  charged  with  the  performance  of  any  duties  under 
tlie  revenue  law,  the  same  obligations  as  if  the  board  of  sui^ervisors  had  made 
the  levy  at  the  proper  time. 

3716.  Ta.r  to  operate  as  a  judgment  or  lien  against  property. 

Sec.  3716.  Every  tax  has  the  effect  of  a  judgment  against  the  person,  and 
eveiy  lien  created  by  this  title  has  the  force  and  effect  of  an  execution  duly 
levied  against  all  property  of  the  delinquent;  the  judgment  is  not  satisfied  nor 
the  lien  removed  until  the  taxes  are  paid  or  the  property  sold  for  the  payment 
thereof. 

3717.  Taj-  on  jjfvsoiial  property  a  lien  on  realty. 

Sec.  3717.  Eveiy  tax  due  upon  personal  property  is  a  lien  upon  the  real  i:»rop- 
erty  of  the  owner  thereof,  from  and  after  the  time  the  same  becomes  delinquent. 
\A7iuiidmeut,  approved  March  30,  1874;  Amendments  1873-4,  159;  took  effect  six- 
tieUi  day  froi7i  passage.''^' 

(a)  The  orifdoal  Mfctlon  iirovldid  for  the  aiiiountB  to         The  section  was  attain  amendrd  by  net  of  March  .30, 

b«-  ralKtU  f..r  llii-  tw<i)lj.f<.iiith  and  twciity-fUtli  fiKoal  1874;  Amendments  l«7:5-4,  ICO,  so  as  to  fix  tho  amonnts 

>■^■ar^.     iJ.-Ion-  it  took  iff.  .t.  U  wi.h  ami  ndi-d  by  ac  t  ap-  to  be  niiBed  for  tlie  twenty-sixth  fiscal  year,  as  follows: 

prfived  April  1.  IK"'.';  lM71-'i.  hW,.  Ml  Bht.i  iix  the  amounts  1.  For  the  general  fund,  $1,7SK,0(I0;  -2.  For  the  school 

U>  be  FMiM  d  for  eiieh  «f  thow:  yenrt*  as  fcdlows;  1.  For  fund,  $1,11(1,000;  If.  For  the  interest  and  siukinf,'  fund, 

the  p  n.  ml   ftin<l.  Jl.l'.Mi.fJdd;  'J.  For  (lie  m  h<».l   fund,  $:«fi,0(iO.     And  for  the   twentvseventh    fiscal   vear:  1. 

|24<i,0(M);  .!.  For  liie  liitereht  and  sinliinK  liin<l  of  lh.'i7,  Forthe general  fund,$l,(;OO.OUU;  •2.  Forthe  school  fund, 

JUO.WX);  i.  ti.T  the  Interest  and  sinking  fund  of  1W,0,  $1,130,000;  3.  For  the  interest  and  sinking  fund,  $336,- 

fWMMI;  .')    F'T  the  state   eapltol   fund,  $'2('(i,i)(i():  fi.  For  000. 

the  iidlitarj-  fund,  .«iX).rKPii;  7.   For  the  soldiers' bounty  (6)  The  original  section,  instead  of  "  same  becomes 

Interest  anrl  siiiklTig  fund.  ?<:j,no(i;  H.  For  ihe  scddiers'  delinquent,"  bad  the  words  "personal    proijerty  Is 

relief  interest  and  sinking  fund,  tJ.'i.OOO;  y.  F..r  the  assessed." 
I'aciflc  rallroa.l  lund.  Slo.l.iHtiP;  10.  For  tho  state  nor- 
mal school  biill.itig  fund,  $7.S,(KJ«;  11.  F'  r  the  state 
capitul  bondc  iutercbt  and  slnklDg  fund,  f3IJ,000. 

454 


REVENUE.  3718-3731 

3718.  Tax  on  real  property  and  tax  on  improvements  a  lien  upon  both. 

Sec.  3718.  Every  tax  due  upon  real  property  is  a  lien  against  the  property 
assessed;  and  every  tax  due  upon  imi^rovements  upon  real  estate  assessed  to 
others  than  the  owner  of  the  real  estate,  is  a  lien  upon  the  land  and  improve- 
ments; which  several  liens  attach  as  of  the  first  Monday  of  March  in  each  year." 

3719.  Tax  for  school  purposes. 

Sec.  3719.  The  state  board  of  equalization  must  levy  annually  at  the  time 
other  state  taxes  are  levied  a  tax  of  such  number  of  cents  on  each  one  hundred 
dollars  value  of  taxable  jiroperty  in  the  state  as.  will  produce  a  net  sum  equal  to 
the  amount  reported  to  them  by  the  controller  as  being  necessary  to  be  raised 
by  an  ad  valorem  tax  for  school  purposes;  and  the  assessment  and  collection  of 
said  tax  shall  be  performed  in  the  same  manner  and  at  the  same  time  as  other 
state  taxes  are  assessed  and  collected.  [New  section,  approved  March  13,  1874:; 
Amendments  1873-4,  84;  took  effect  from  passage. 

CHAPTER    YI. 

DUTIES   OF   THE  AUDITOR  IN  RELATION   TO   REVENUE. 

3727.  Auditor  to  enter  in  assessment  book  total  valuations  and  acreage  of  county. 
Sec.  3727.  The  county  auditor,  as  soon  as  the  assessment  book  is  delivered  to 

him  by  the  clerk  of  the  board  of  supervisors,  must  proceed  to  add  up  the  valua- 
tions, and  enter  the  total  valuation  of  each  kind  of  proj^erty  and  the  total 
valuation  of  all  proj)erty  on  the  assessment  book.  The  column  of  acres  must 
show  the  total  acreage  of  the  county. 

3728.  Auditor  to  prepare  duplicate  statement,  showing  what.  ^'~ 
Sec.  3728.  The  auditor  must,  on  or  before  the  third  Monday  in  August  of 

each  year,  prepare  from  the  "  assessment  book"  of  such  year,  as  corrected  by 
the  board  of  suioei-visors,  duplicate  statements,  showing  in  separate  columns: 

1.  The  total  value  of  all  property; 

2.  The  value  of  real  estate; 

3.  The  value  of  the  improvements  thereon; 

4.  The  value  of  personal  property,  exclusive  of  money; 

5.  The  amount  of  money; 

6.  The  number  of  acres  of  land. 

3729.  Statements  transmitted  to  controller  and  board  of  equalization. 

Sec.  3729.  The  auditor  must,  as  soon  as  such  statements  are  prepared,  trans- 
mit by  mail  or  express  one  to  the  controller  of  state  and  one  to  the  state  board 
of  equalization. 

3730.  Auditor  to  disregard  certain  action  of  board  of  supervisors.  Yd- 
Sec.  3730.  The  auditor  must  disregard  any  action  of  the  board  of  supervisors 

which  is  prohibited  by  section  3G33  of  this  code.  [Amendme)d,  approved  April 
1,  1876;  Amendments  1875-6,  11;  took  effect  immediately.'-^'' 

3731.  Auditor  to  compute  and  enter  taxes  against  p)roperty. 
Sec.  3731.  The  auditor  must  comjuite  and  enter  in  a  separate  money  column 

in  the  assessment  book  the  resj)ective  sums,  in  dollars  and  cents,  rejecting  the 

(a)   Original  section:  when  more  than  fifty  cents,  as  one  dollar,  and  omitting 

Sec.  3730.  As  soon  as  the  auditor  receives  from  the  it  when  less  than  fifty  cents,  so  that  the  value  of  any 

state   board  of  equalization   a  statement  of    the   per  separate   assessment  shall    contain  no  fraction  of   a 

centum,  if  any,  to  be  added  to  or  deducted  from  the  dollar. 

valuation  of  the  property  of  his  coimty,  he  must  add  It  was  previously  amended  by  net  of  March  24,  1874; 

to  or  deduct  from  each  assessment  the  required  per  Amendments  1S73-4,  147,  so  as  to  read  like  the  original 

centum  ou  the  valuation  thereof,  as  the  same  has  been  with  the  addition  of  a  clause  at  the  end  as  follows: 

equalized  by  the  board  of  supervisors,  and  must  enter  "  but  he  shall,  in  all  cases,  disregard  any  action  of  the 

the  same  in  a  column  provided  with  a  proper  heading,  board  of  supervisors  which  is  prohibited  by  section 

in  the  assessment  book,  counting  any  fractional  sum,  3633  of  this  code." 

455 


</) 


3731-3738  POLITICAL  CODE. 

fractions  of  a  cent,  to  be  j^aid  as  a  tax  on  the  property  therein  enumerated,  and 
foot  up  the  column  showing  the  total  amount  of  such  taxes.  [Ameiidmeyit,  ap- 
proved April  1,  187G;  Amt:ndmen(s  187 5-G,  11;  took  effect  immediately }"^ 

3732.  Delivei-y  of  copy  of  assessment  book  to  collector. 

Sec.  3732.  On  or  before  the  fourth  Monday  of  October  he  must  deliver  a  copy 
of  the  assessment  book,  to  be  styled  "duplicate  assessment  book,"  to  the  tax 
collec-tor,  with  an  affidavit  attached  thereto,  and  by  him  subsciibed,  as  follows: 

««I^ ,  auditor  of  the  county  of ,  do  swear  that  I  received  the 

assessment  book  of  .the  taxable  property  of  the  county  from  the  clerk  of  the 
board  of  supen-isoi-s,  with  his  affidaA-it  thereto  affixed;  that  I  have  reckoned  the 
respective  sums  due  as  taxes,  and  have  added  up  the  columns  of  valuations, 
taxes,  and  acreage  as  required  by  law,  and  that  the  copy  to  which  this  affidavit 
is  affixed  is  a  full,  true,  and  correct  copy  thereof,  made  in  the  manner  pre- 
scribed by  law."  {Amendment,  approved  April  1,  187G;  Amendmentsl'&'i^-Q>,  11; 
took  ejf'ect  immediately. ^^^ 

3733.  Auditor  to  retain  original  assessment  book. 

Sko.  8733.  The  original  assessment  book  must  remain  in  the  office  of  the 
auditor. 

3734.  Tux  collector  charged  with  full  amount  of  taxes  levied. 

Sec.  373-4.  On  delivering  the  "duplicate  assessment  book"  to  the  tax  col- 
lector, the  auditor  must  charge  the  tax  collector  with  the  full  amount  of  the 
taxes  levied,  and  forthwith  transmit  by  mail  to  the  controller  of  state  a  state- 
ment of  the  amount  so  charged. 

3735.  Auditor  to  verify  all  statements  made  by  him. 

Sec.  3735.  The  auditor  must  verify  by  his  affidavit  attached  thereto,  all  state- 
ments made  by  him  under  the  provisions  of  this  title. 

3736.  Transfer  of  assessment  book  from  one  collector  to  another. 

Sec.  3730.  The  auditor,  if  the  "duplicate  assessment  book"  or  the  delin- 
quent tax  list  is  transferred  from  one  collector  to  another,  must  credit  the  'one 
and  charge  the  other  with  the  amount  then  outstanding  on  the  tax  list. 

3737.  penally  for  failure  or  neglect  of  counly  auditor. 

Skc.  3737.  If  the  county  auditor  fails  or  neglects  to  perform  the  duties  pre- 
scribed by  sections  3728  iind  3729  of  the  Political  Code,  he  shall  forfeit  to  the 
state  live  hundred  dollars,  to  be  recovered  by  action  in  the  name  of  the  state 
board  of  equalization.  [New  section,  approved  March  24,  1874  ;  Amendments 
1873-4,  150;  look  effect  from  passage. 

3738.  Duplicate  assessment  book  may  be  dispensed  loith. 

Sec.  3738.  The  board  of  supenMsors  of  any  county  may,  in  their  discretion, 
dispense  witli  the  making  or  use  of  any  duplicate  assessment  book  mentioned 
in  any  part  of  this  code;  and  in  all  cases  where  said  duplicate  assessment 
book  is  refi-rred  to,  it  sliall  be  lawful  to  use  and  consider  the  original  assess- 
ment book  in  all  tlie  requirements  of  every  part  of  this  code  referring  to  the 
same;  and  all  affidavits,  or  other  statements  in  reference  to  said  duplicate 
assessment  bo<jk,  shall  bo  substantially  worded  to  conform  to  the  use  of  the 
original  assessment  book.  [New  section,  approved  March  24,  1874;  Amendments 
1873-4,  inO;  lii'ib  I'ffect  from  jmssage. 

(a)  Thr  original  f-t|niiliii<Hh«-\vor<l  "  fli<-n  "  liofore  Ihp  words  "and  that  I  have  corrected  it  and  made  it 

"coini.leti-."  :iijd  at  th.- .-iLlif  h.i.l  til."  wor.lH  ••and  the  ciuforin    to    the    r(<iuiri^nientB  ol   the   BtHte   board   of 

coliHiinK  of  t"tiil  value  r,f  ].r"i.crt;- in  th<-  rointy.  a«  iiiualiziition."    It  did  not  have  the  concluding  words 

corrected   ni.dcr  the  direction  of  the   tttat*;  board  of  "  made  in  the  manner  prcBcribed  by  law." 

equalization."  It  was  uinendcd  by  act  of  March  -li,  1874;  Amend- 

(6)  The  <»rlKlnal  HCction  had  the  word  "  corrected  "  mentH  1H73  A,  148,  by  adding  to  the  original  the  words 

before  the  flTbt  word  "awKWfmeut/'uud  after  "ufllxed"  "  made  in  the  manner  prescribed  bylaw." 

456 


REVENUE.  3738-3752 

An  Act  to  amend  and  also  to  repeal  certain  sections  of  the  Political  Code  relating  to  the  «tate 

board  of  equalization. 

Approved  April  1,  1876;  Amendments  1876-C,  11. 

[The  first  ten  sections  consist  of  amendments  to  sections  352,  3G50,  3651, 
3G92,  3G94,  3G9G,  3702,  3730,  3731  and  3732  of  the  Political  Code  therein 
inserted.] 

Completion  of  old  business. 

Sec.  11.  The  board  is  empowered  and  directed  to  complete  the  unfinished 
business,  if  any  there  is,  of  the  former  state  board  of  equalization;  which  said 
board  is  directed  to  deliver  to  the  board  created  by  this  act,  all  the  maps, 
papers,  and  records  of  the  ofiice. 

Sec.  12.  The  state  board  of  equalization,  if  it  deem  it  necessaiy,  may  have 
l^rinted  five  hundred  copies  of  the  whole  or  any  part  of  Title  IX  of  the  Politi- 
cal Code,  and  transmit  five  copies  thereof  to  the  county  clerk  of  each  county 
for  distiibution  to  the  revenue  officers  thereof. 

Sec.  13.  Sections  3693,  3G95,  3700,  3701  and  3703  of  the  Political  Code  are 
hereby  repealed. 

Sec.  14.  This  act  takes  effect  immediately  after  its  passage. 


CHAPTER  VII. 

COLLECTION  OF  PROPERTY  TAXES./ 

3746.  Tax  collector  to  publish  notice,  specifying  what. 
Sec.  3746.  Within  ten  days  after  the  receipt  of  the  "duplicate  assessment 

book,"  the  tax  collector  must  publish  a  notice  sjaecifying: 

1.  That  taxes  will  be  delinquent  on  the  first  Monday  in  January  next  there- 
after, and  that  unless  paid  prior  thereto,  five  j^er  cent,  will  be  added  to  the 
amount  thereof; 

2.  The  time  and  j^lace  at  which  payment  of  taxes  may  be  made.  [Amend- 
ment, approved  April  3, 1876;  Amendments,  1875-6,  58;  took  eff ect  from  passage. ^^'> 

3747.  Taxes  in  San  Francisco  jMyable  at  collector's  office.  o  Y"  ^ 
Sec  3747.  In  the  city  and  county  of  San  Francisco,  the  notice  must  specify 

the  ofiice  of  the  collector  as  the  place  where  taxes  may  be  paid. 

3748.  In  other  counties  notice  to  specify  place  of  p)ayment.  ^9  - 
Sec  3748.  In  other  counties  the  notice  must  sjDCcify  a  time  and  place  within 

each  township  in  the  county  when  and  where  the  collector  will  attend  to  receive 
payment  of  taxes. 

3749.  Manner  of  jncblicafion  of  notice. 

Sec  3749.  The  notice  in  every  case  must  be  published  for  two  weeks  in 
some  weekly  or  daily  newspajjer  published  in  the  county,  if  there  is  one;  or  if 
there  is  not,  then  by  j^osting  it  in  three  public  jjlaces  in  each  townshij^. 

3750.  Tax  collector  to  note  dale  of  payment. 

Sec  3750.  The  tax  collector  must  mark  the  date  of  the  payment  of  any  tax 
in  the  assessment  book,  opposite  the  name  of  the  person  paying. 

3751.  Receipt  to  be  given.  /)  ~  i 
Sec  3751.  He  must  give  a  receipt  to  the  person  paying  any  tax,  specifying   7  ^ 

the  amount  of  the  assessment  and  the  tax  paid,  with  a  descrii:)tion  of  the  prop- 
erty assessed. 

3752.  Taxes  of  decedents,  how  paid. 

Sec  3752.  The  probate  judge  must  require  every  administrator  and  executor        ^ 

(a)  The  original  section  was  the  same  except  that  it  had  the  words  "become  delinquent"  instead  of  "be  de- 
linquent "  in  the  second  6ubdi\-iBion. 

457 


3752-37G0  POLITICAL  C,ODE. 

to  pay  out  of  the  fuuJs  of  the  estate  all  taxes  due  from  such  estate;  and  no 
order  or  decree  for  the  distribution  of  any  property  of  any  decedent  among  the 
heirs  or  devisees  must  be  made  until  all  taxes  against  the  estate  are  paid. 

3753.  Setllement  of  collector  icifh  auditor,  when  made. 

Sec.  3753.  On  the  first  Monday  in  each  month  the  tax  collector  must  settle 
with  the  auditor  for  all  moneys  collected  for  the  state  or  county,  and  pay  the 
same  to  the  county  treasurer,  and  on  the  same  day  must  deliver  to  and  hie  in 
the  office  of  the  auditor  a  statement,  under  oath,  showing: 

1.  An  account  of  all  his  transactions  and  receipts  since  his  last  settlement; 

2.  That  all  money  collected  by  him  as  tax  collector  has  been  paid. 

3754.  Liahilitii  of  tax  collector  refusing  or  neglecting  to  settle. 

Sec.  3754.  A  tax  collector  refusing  or  neglecting  for  a  joeriod  of  five  days  to 
make  the  payments  and  settlements  required  in  this  title,  is  liable  for  the  full 
amount  of  taxes  charged  ujion  the  assessment-roll. 

3755.  Action  against  collector  for  such  refusal  or  neglect. 

Stc.  3755.  The  district  attorney  must  bring  suit  against  the  tax  collector  and 
his  sureties  for  such  amount,  and  in  case  of  neglect,  the  controller  of  state  or 
the  board  of  supervisors  may  require  him  to  do  so ;  and  when  the  suit  is  com- 
menced, no  credit  or  allowance  must  be  made  to  the  collector  for  the  taxes  out- 
standing. 

/        3756.    When  taxes  are  delinquent,  addition  thereto  of  five  joer  cent. 
"*iT~^       Sec.  375G.  On  the  first  Monday  in  January  of  each  year,  at  six  o'clock  p.  m., 
all  unpaid  taxes  are  delinquent,  and  thereafter  the  tax  collector  must  collect 
thereon,  for  the  use  of  the  county,  an  addition  of  five  per  cent.     {Amendment, 
.  approved  January  12,  1876;  Amendments  1^1  b-Q>,  60;  took  effect  from  passage. '-"^ 

3757. 

(Sec.  3757*"'  was  repealed  by  act  approved  December  23,  1873;  Amendments 
1873-4,  160;  took  efl'ect  immediately.] 

3758.  Comparison  of  original  and  duplicate   assessment   books  by   collector  and 

auditor. 
-^  I  Sec.  3758.  On  the  third  Monday  in  January  of  each  year,  in  each  of  the 

counties  other  than  San  Francisco,  and  on  the  first  Monday  in  February  of 
eadi  year  ii)  the  city  and  county  of  San  Francisco,  the  tax  collector  must  attend 
at  the  office  of  the  auditor,  with  the  duplicate  assessment  book,  and  carefully 
comj)are  the  dui)licate  with  the  original  assessment  book,  and  every  item 
marked  "  paid"  in  the  former  must  be  marked  "  paid"  in  the  latter.  [Amend- 
vii'itt,  ajtprovcd  January  15,  1876;  Amendments  1875-6,  60;  took  effect  from 
paasage.^"  , 

(See,  in  this  connection,  the  time  i)rescribed  for  publishing  the  delinquent 
list  as  prescribed,  jjost  3764.] 

3759.  When  delinquent  list  must  be  completed. 

Sec.  3751).  The  tax  collector  must,  at  the  time  specified  in  the  preceding  sec- 
tion, deliver  to  the  auditor  a  complete  "delinquent  list"  of  all  persons  and 
proj)erty  then  owing  taxes. 

3760.  All  mnfterx  on  assessment  book,  etc.,  to  be  set  down  in  numerical  or  alpha- 

betical order. 
Sj.i..  .'i760.  In  the  list  so  delivered  must  Ijc  sot  down  in  numerical  or  alpha- 

{a)_  The  nrlKlnal  nectlon  did  u<A  havo  tUo  words  "  at  (c)  The  original  spotion  did  not  have  the  words  "  in 

«lx  oVhirk  I".  M."  each  of  the,  counties  other  than  San  Fnincisco,  and  on 

(fc)   lUymU-ii  Hi-<tion:  the  firht  .Monday  in  F.hruary  of  each  year  in  the  city 

Sec.  3(.h.  No  taxes  miwl  be  collcrtt-d  or  received  and  county  of  San  Francisco." 


fr'im  the  ftrbt  lo  the  third  Monday  of  January,  incluKi  ve, 
in  each  year, 


458 


REVENUE.  37G0-37G4 

betical  order  all  matters  and  things  contained  in  the  assessment  book  and  re- 
lating to  delinquent  persons  or  property. 

3761.  Credit  to  he  given  to  tax  collector  on  final  settlement,  etc. 

Sec.  3761.  The  auditor  must  carefully  compare  the  list  with  the  assessment 
book,  and  if  satisfied  that  it  contains  a  full  and  true  statement  of  all  taxes  due 
and  unpaid,  he  must  foot  up  the  total  amount  of  taxes  so  remaining  unpaid, 
credit  the  tax  collector  who  acted  under  it  therewith,  and  make  a  final  settle- 
ment with  him  of  all  taxes  charged  against  him  on  the  assessment  book,  and 
must  require  from  him  the  treasurer's  receipt,  or  if  the  treasurer  is  the  col- 
lector, require  from  him  an  immediate  account  for  any  existing  deficiency. 

An  Act  in  relation  to  moneys  belonging  to  the  state  derived  from  taxes  assessed  on  mort- 
gages. 

Approved  March  30,  1872;  1871-2,  7C2. 

Disposition  of  moneys. 

Section  1.  All  moneys  belonging  to  the  state  now  in  the  hands  of  tax  col- 
lectors, which  were  received  as  taxes  on  promissory  notes  secured  T)y  mortgage 
assessed  and  collected  in  the  years  1870  and  1871,  and  all  moneys  that  may  be 
derived  from  taxes  now  delinquent,  which  were  assessed  on  promissory  notes 
secured  by  mortgage  in  the  years  1870  and  1871,  are  hereby  directed  to  be 
retained  for  the  use  of  the  several  counties  which  levied  such  taxes.  The  tax 
collectors  of  the  several  counties  in  which  such  property  was  assessed  are 
authorized  and  required  to  pay  over  all  such  moneys  to  the  county  treasurer  in 
the  same  manner  as  other  taxes  are  paid. 
General  fund. 

Sec.  2.  All  moneys  which  by  this  act  are  remitted  to  the  several  counties  in 
which  such  assessments  were  made  shall  be  placed  to  the  credit  of  the  general 
fund. 

Sec.  3.  All  laws  and  parts  of  laws  inconsistent  with  this  act  are  hereby  re- 
l^ealed. 

Sec.  4.  This  act  shall  be  in  force  from  and  after  its  passage. 

3762.  Tax  collector  charged  loith  delinquent  taxes  and  five  per  cent,  additional. 
Sec.  3762.  After  settlement  with  the  tax  collector,  as  prescribed  in  the  preced- 
ing section,  the  auditor  must  charge  the  tax  collector  then  acting  with  the 
amount  of  taxes  due  on  the  delinquent  tax  list,  with  the  five  per  cent,  added 
thereto,  and  within  three  days  thereafter  deliver  the  list,  duly  certified,  to  such 
tax  collector. 

3763.  Auditor  to  transmit  statement  to  controller  ;  time  when ;  form  of. 

Sec.  3763.  Within  ten  days  after  the  final  settlement,  the  auditor  must  trans- 
mit, by  mail  or  express,  a  statement  to  the  controller  of  state,  in  such  foi-m  as 
he  requires,  of  each  kind  of  property  assessed  and  delinquent,  and  the  total 
amount  of  delinquent  taxes. 

3764.  Publication  of  delinquent  list ;  ichen  made ;  what  to  contain.  5^?--^ 
Sec.  3764.  On  or  before  the  first  Monday  in  February,  the  tax  collector  must  ^i;^.  ^ 

pubHsh  the  delinquent  list,  which  must  contain  the  names  of  the  persons  and  a^ 
description  of  the  property  delinquent,  and  the  amount  of  taxes  and  costs  due,  / 
opposite  each  name  and  description,  with  the  taxes  due  on  personal  property 
added  to  taxes  on  real  estate,  w^here  the  estate  is  liable  therefor  or  the  several 
taxes  are  due  from  the  same  person.  The  expense  of  the  publication  to  be  a 
charge  against  the  county.  [Amendment,  approved  April  3,  1876;  Amendmeirts 
1875-6,  58;  took  effect  from  passage. '•^^ 

(a)  The  original  section  was  the  same  as  the  amend-  "  must  publish  "  the  following  •words,  "  in  each  of  the 

ment  in  the  text,  except  that  it  did  not  have  the  last  counties  other  tliau  San  Francisco,  and  on  or  hefi.re 

sentence.  the  first  Monday  in  March  of  each  year  in  I  he  city  and 

It  was  previously  amended  by  act  of  January  15,  county  of  San  Francisco  the  tax  collector  of  said  city 

1876;  Amendments  1875-6,  61,  so  as  to  insert  before  and  county." 

459 


37C5-3773  POLITICAL  CpDE. 

3765.  Notice  of  sale  appended  to  delinquent  lid. 

Sec.  3765.  The  tax  collector  must  apiieiid  and  publish  with  the  delinquent 
list  a  notice  that  unless  the  taxes  dehnquent,  together  with  the  costs  and  per- 
centage, are  paid,  the  real  in-opert}'  upon  which  such  taxes  are  a  lien  will  be 
sold  at  public  auction. 

3766.  Manner  nf  making  pnhlication. 

Sec.  37(JG.  The  publication  must  be  made  once  a  week  for  three  successive 
weeks,  in  some  newsi)aper,  or  supplement  thereto,  published  in  the  county;  or 
if  there  is  none,  then  by  posting  a  copy  of  the  list  in  three  public  places  in  each 
township. 

3767.  Same. 

Sic-.  3707.  The  publication  must  designate  the  time  and  j)lace  of  sale. 

3768.  Sale,  ichen  and  where  to  take  place. 

Sec.  37(jS.  The  time  of  sale  must  not  be  less  than  twenty-one  nor  more  than 
twenty-eight  days  from  the  first  j^ublication,  and  the  i:>lace  must  be  in  front  of 
the  county  com-t-house,  or  if  in  the  city  and  county  of  San  Francisco,  in  or  in 
front  of  the  tax  collector's  ofl&ce,  for  all  state  and  county  taxes,  and  for  all  other 
taxes  in  front  of  the  tax  collector's  offices  in  their  respective  towns,  cities  and 
local  districts.  [Amendment,  approved  March  IG,  187G;  Amendments  1875-6,  62; 
took  cjfectfrom  passage.'^"^ 

3769.  Notice  containing  what  to  he  filed  toith  county  recorder. 

Sec.  37G9.  The  collector,  as  soon  as  he  has  made  the  publication  required  by 
sections  3764,  37G5,  37G6,  and  37G7,  must  file  with  the  county  recorder  and 
county  clerk  respectively,  a  copy  of  the  publication,  with  an  affidavit  attached 
thereto  that  it  is  a  true  copy  of  the  same;  that  the  publication  was  made  in  a 
newspaper  or  supplement  thereto,  stating  its  name  and  place  of  publication, 
and  the  date  of  each  appearance;  and  in  case  there  was  no  newspaper  published 
in  his  county,  that  notices  were  put  up  in  three  public  places  in  each  of  the 
townships,  designating  the  township  and  places  therein,  which  affidavit  is 
primary  evidence  of  all  the  facts  stated  therein. 

3770.  Collector  to  collect  an  additional  sum  to  defray  costs,  etc. — Sum,  how  collected. 
Sec  3770.  The  collector  must  collect,  in  addition  to  the  taxes  due  on  the 

delinquent  list  and  five  per  centum  added  thereto,  fifty  cents  on  each  lot,  piece, 
or  ti-act  of  land  separately  assessed,  and  on  each  assessment  of  personal  prop- 
erty, one  half  of  which  must  go  to  the  county  and  the  other  to  the  collector  in 
iuU  for  preparing  the  list. 

3771.  Manner  of  conducting  sale. 

Sec.  3771.  On  the  day  fixed  for  the  sale,  or  on  some  subsequent  day  to  which 
he  may  have  postponed  it,  of  which  he  must  give  notice,  the  collector,  between 
the  hours  of  ten  o'clock  a.  m.  and  three  p.  m.,  must  commence  the  sale  of  the 
proi>erty  a<lvortiHed,  commencing  at  the  head  of  the  list,  and  continuing  alpha- 
l>etically  or  in  the  numerical  order  of  lots  and  blocks  until  completed. 

3772.  J'oHfponement. 

Sec  3772.  Ho  may  postpone  the  day  of  commencing  the  sale,  or  the  sale 
iroiu  day  to  day;  Init  the  sale  must  be  completed  within  three  weeks  from  the 
day  first  fixed. 

3773.  Oirucr  of  pruix-rtij  may  designate  what  portions  to  be  sold  first,  etc. 

Sec.  3773.  The  owner  or  i)er.son  in  possession  of  any  real  estate  offered  for 
Bale  for  taxes  due  thereon,  may  designate,  in  writing,  to  the  tax  collector,  prior 
to  the  sale,  what  portion  of  the  property  he  wishes  sold,  if  less  than  the  whole; 

(a)  Thcoriifinal  goctlon  did  not  have  the  last  clauBe  commencing  with  the  words  "foraU  state  and  county 
taxes." 

460 


REVENUE.  3773-3780 

but  if  the  owner  or  the  possessor  does  not,  then  the  collector  may  designate  it, 
and  the  person  who  will  take  the  least  ciuantity  of  tbe  land,  or  in  case  an  undi- 
vided interest  is  assessed,  then  the  smallest  portion  of  the  interest,  and  pay 
the  taxes  and  costs  due,  including  fifty  cents  to  the  collector  for  the  duplicate 
certificate  of  sale,  is  the  purchaser.  But  in  case  there  is  no  purchaser  in  good 
faith  for  the  same,  as  provided  in  this  chapter,  on  the  first  day  that  the  property  ! 
is  ofl'ered  for  sale,  then  when  the  property  is  offered  thereafter  for  sale,  and 
there  is  no  purchaser  in  good  faith  of  the  same,  the  whole  amount  of  the  prop- 
erty assessed  shall  he  struck  off  to  the  people  of  the  state  as  the  purchaser, 
and  the  duplicate  certificate  delivered  to  the  county  treasurer  and  filed  by  him 
in  his  office.  No  charge  shall  be  made  for  the  duplicate  certificate  when  the 
state  is  a  purchaser;  and  in  such  case  the  tax  collector  shall  make  an  entry, 
"Sold  to  the  State,"  on  the  duplicate  assessment  book  opposite  the  tax,  and 
he  shall  be  credited  with  the  amount  thereof  in  his  settlement,  made  pursuant 
to  sections  3797,  3798  and  3799  of  this  code.  [Amejuhnent,  approved  March  24, 
1874;  Amendments  1873-4,  148;  took  effect  from  passage.''^'' 

3774.  When  purchaser  does  not  make  payment  on  need  day  propei'fy  to  be  resold. 
Sec.  3774.  If  the  purchaser  does  not  pay  the  taxes  and  costs  before  ten  o'clock 

A.  M.  of  the  following  day,  the  jnoperty,  on  the  next  sale  day,  before  the  regu- 
lar sale,  must  be  resold  for  the  taxes  and  costs. 

3775.  Bid  of  person  once  refusing  to  make  payment  not  to  he  received. 

Sec.  3775.  The  bid  of  any  person  refusing  to  make  the  payment  for  property 
purchased  by  him  must  not  be  received  on  the  sale  of  any  property  advertised 
in  the  delinquent  list  of  that  year. 

3776.  Collector  to  give  purchaser  duylicate  certificate  of  sale. 

Sec  3776.  After  receiving  the  amount  of  the  taxes  and  costs,  the  collector 
must  make  out  in  dujolicate  a  certificate,  d^ted  on  the  day  of  sale,  sTating(when 
known)  the  name  of  the  person  assessed,  a  description  of  the  land  sold,  ""the 
amount  paid  therefor, ^^that  it  was  sold  for  taxes,^giving  the  amount  and  year  of 
the  assessment,,  and  specifying  the  time  when  the  purchaser  will  be  entitled  to 
a  deed. 

3777.  Delivery  of  certificate. 

Sec.  3777.  The  certificates  must  be  signed  by  the  collector,  and  one  copy  de- 
livered to  the  purchaser,  and  the  other  filed  in  the  ofiS.ce  of  the  county  re- 
corder. 

3778.  Collector  to  enter  in  hook  description  of  land  sold,  etc. 

Sec  3778.  The  collector,  before  delivering  any  certificate,  must  in  a  book  enter 
a  description  of  the  land  sold  corresponding  with  the  description  in  the  certifi- 
cate, the  date  of  sale,  purchaser's  name,  and  amount  paid,  regularly  number 
the  descriptions  on  the  margin  of  the  book,  and  put  a  corresponding  number  on 
each  certificate.  Such  book  must  be  open  to  public  inspection  without  fee,  dur- 
ing ofl&ce  hours,  when  not  in  actual  use. 

3779.  Lien  of  state  vests  in  purchaser;  hoio  divested. 

Sec  3779.  On  filing  the  certificate  with  the  county  recorder  the  lien  of  the 
state  vests  in  the  purchaser,  and  is  only  divested  by  the  payment  to  him,  or  to 
the  county  treasurer  for  his  use,  of  the  purchase-money  and  fifty  per  cent, 
thereon. 

3780.  Redemption,  time  for.  v^ 
Sec  3780.  A  redemption  of  the  property  sold  may  be  made  by  the  owner,  o^  < 

7   ' 
(a)  The  original  Bection  consisted  only  of  the  first  sentence.    Instead  of  "  fifty  cents  "  it  had  the  words  "  two 
dollars." 

461 


3780-3786  POLITICAL  CODE. 

any  party  in  interest,  within  twelve  months  from  the  date  of  the  purchase. 
[Ameudmenf,  approved  January  13,  1876;  Amendments  1875-6,  62;  took  effect  im- 
inediatelif.'''" 

3781.  Coin. 

Sec.  3781.  Redemption  must  be  made  in  gold  or  silver  coin,  and  when  made 
to  the  county  treasurer,  he  must  credit  the  amount  paid  to  the  person  named  in 
the  collector's  certificate,  and  pay  it  on  demand  to  the  person  or  his  assignees. 
[Amendment,  approved  JIarch  24,  1874;  Amendments  1873-4, 157;  took  effect  from 
poiiiiage.'^^' 

3782.  Ti-eaaurer  to  rqMrt  to  siipej'visors  pp7\^ons  entitled  to  redemption. 

Sec.  3782.  In  each  rejioi-t  the  treasurer  makes  to  the  supervisors  he  must 
name  tlie  persons  entitled  to  redemption  money,  and  the  amount  due  to  each. 

3783.  liecorder  to  file  certificate  of  sale. 

Sec.  3783.  On  receiving  the  certificate  of  sale  the  recorder  must  file  it,  and 
make  an  entry  in  a  book  similar  to  that  recj[uired  of  the  collector. 

3784.  Wlirn  j)roperty  redeemed,  recorder  to  note  in  hook. 

Sec.  3784.  On  the  presentation  of  the  receij)t  of  the  person  named  in  the 
certificate,  or  of  the  county  treasurer  for  his  use,  of  the  total  amount  of  redemp- 
tion money,  the  recorder  nuist  mark  the  word  "redeemed,"  the  date,  and  by 
whom  redeemed,  on  the  certificate  and  in  the  margin  of  the  book  whei'e  the 
entiy  of  the  certificate  is  made. 

3785.  Deed  given  on  failure  to  redeem. 

Sec.  3785.  If  the  property  is  not  redeemed  within  the  time  allowed  by  law 
for  its  redemption,  the  collector,  or  his  successor  in  oflSce,  must  make  to  the 
jiun.'haser,  or  his  assignee,  a  deed  of  the  property,  reciting  in  the  deed  sub- 
stantially the  matters  contained  in  the  certificate,  and  that  no  person  has  re- 
deemed the  property  during  the  time  allowed  for  its  redemption.  In  counties 
where  no  fee  for  making  said  deeds  is  provided  by  law,  the  collector  shall  be 
entitled  to  receive  from  the  purchaser  three  dollars  for  making  such  deed.  No 
charge  must  be  made  by  the  collector  for  the  making  of  any  such  deed  where 
the  state  is  the  purchaser;  and  the  acknowledgment  of  all  of  said  deeds,  as  pro- 
vided in  section  3773,  shall  be  taken  by  the  county  clerk,  free  of  charge. 
[Amendment,  approved  February  15,  1876;  Amendments  1875-6,  62;  took  effect 
from  paitaafje.^"^ 

3786.  lii^citals  in  deed  primary  evidence  of  what. 

Sec.  3786.  The  matters  recited  in  the  certificate  of  sale  must  be  recited  in  the 
deed,  and  such  deed,  duly  acknowledged  or  proved,  is  primary  evidence  that: 

1.  The  property  was  assessed  as  required  by  law; 

2.  The  property  was  equalized  as  required  by  law; 

3.  The  taxes  were  levied  in  accordance  with  law; 

4.  The  taxes  were  not  paid; 

5.  At  a  i)roi)er  tinie  and  place  the  property  Avas  sold  as  prescribed  by  law,  and 
by  the  ])roper  ofl&cer; 

6.  Tlie  i)n>p(rty  was  not  redeemed; 

lat  The  '.rlKliitil  Bcctloii  wan  i\u;  name  an  thr-  amonfl-  It  wns  previously  ainentled  bv  act  of  March  24,  1874; 

IM<iit  in  IIk'  t<  xt.  Aiiii-iiilinciits  lh7.t-4,  \nl,  so  as  to  read  as  follows: 

It  wsM  i.r«vl..tiKly  aniondo.l  l.y  act  of  March  24,  1874;  Sicc.  :)7^-..  If  the  property  is  not  redeemed  within  six 

Aui'iiiliiKTiU  lK7.(-4.  157.  HO  BH   to  URC  the  word  "Bix"  uionihs  from  the  gale,  the  collector,  or  his  successor  in 

lnKt«-»d  of  ■•  tw<  Ivp."  ofBce,  must  make  to  the  purchaser  or  his  assij^'uce,  a 

{>,)    Ih<-  oriKlnal   KPctlon  did   not  have  the  clause  deed  of  the  prop  rty,  recltinj,' in  the  deed  substantially 

comnicuclug  with   tli<-   wordil  "reserving  two  and  a  the  naatters  contaiiied  in  the  certificate,  and  that  no 

'"'^•"  person  redeemed  tlic  property  during  the  time  allowed 

(-•)    The  oriKlnnl    »ectlon   wafc    like   the    following  by  law  for  its  redemption;  provided,  that  in  counties 

amendment,  .x.ept  that  it  bad  "  tw.-lve  "  instead  of  where  no  fee  in  making  siid  deed  is  provided  bv  law, 

'•  Rlx."     It  did  not  have  the  words  "  or  Lis  succcHSor  in  the  c(dlector  shall  hit  entitled  to  receive  from  the  pur- 

offlce  "  nor  the  proviso.  chaser  three  dollars  lor  making  euch  deed. 

462 


REVENUE.  378G-3790 

7.  The  person  "wlio  executed  the  deed  was  the  proper  officer; 

8.  Where  the  real  estate  Avas  sokl  to  pax  taxes  on  personal  property,  tlmt  the 
real  estate  belonged  to  the  person  liable  to  pay  the  tax, 

3787.  What  recitals  are  conclusive  evidence. 

Sec.  3787.  Such  deed,  duly  acknowledged  or  proved,  is  (except  as  against 
actual  fraud)  conclusive  evidence  of  the  regularity  of  all  other  proceedings, 
from  the  assessment  by  the  assessor,  incLusive,  up  to  the  execution  of  the  deed. 

3788.  Deed  conveys  absolute  title. 

Sec  3788.  The  deed  conveys  to  the  grantee  the  absolute  title  to  the  lands  Yl 
described  therein,  free  of  all  incumbrances,  except  when  the  land  is  owned  by 
the  United  States  or  this  state,  in  which  case  it  is  prima  facie  evidence  of  the 
right  of  possession.  Deeds  to  the  state,  of_state  lands  sold  for  delinquent 
taxes,  shall  be  recorded  by  the  recorders  of  the  several  counties,  as  prescribed 
in  section  3816  of  this  code,  and  a  copj'  of  said  deeds,  duly  certified  by  the 
county  recorder  and  acknowledged  before  the  county  clerk,  shall  without  delay 
be  filed  in  the  office  of  the  surveyor-general,  and  thereupon  the  laud  shall 
again  become  subject  to  entry  and  sale,  in  the  same  manner  and  subject  to  the 
same  conditions  as  apply  to  other  state  lands  of  like  character,  except  that  the 
former  possessors  of  lands  thus  deeded  to  the  state,  their  heirs  or  assigns,  shall 
be  preferred  purchasers  thereof  for  three  months  after  the  deeds  are  filed  with 
the  surveyor-general  as  prescribed  in  this  section,  but  the  surveyor-general 
shall  not  permit  an  entry,  nor  make  a  sale  of  any  lands  thus  deeded  to  the 
state,  except  upon  the  previous  payment  into  the  state  treasury,  in  addition  to 
the  price  of  said  land  as  compared  with  the  price  fixed  for  other  state  lands  of 
a  like  character,  by  the  person  or  persons  proposing  to  make  the  entry  or  pur- 
chase, of  a  sum  equal  to  the  delinquent  taxes,  costs,  and  penalties,  by  virtue 
whereof  the  state  became  a  purchaser  of  the  lands  thus  sought  to  be  entered  or 
purchased.  The  money  thus  paid  into  the  state  treasury  shall  be  distributed 
in  the  manner  prescribed  in  section  3816  of  this  code.  [Amendment,  approved 
March  9,  1876;  Amendments  1875-6,  63;  took  effect  from  passage.''^' 

3789.  Assessment  hook,   duplicate  assessment  book,  delinquent  list,  prima  facie 

evidence. 
Sec.  3789.  The  assessment  book,  duplicate  assessment  book,  or  delinquent 
list,  or  a  copy  thereof  certified  by  the  county  auditor,  showing  unpaid  taxes 
against  any  joerson  or  property,  is  prima  facie  evidence  of  the  assessment,  the 
property  assessed,  the  delinquency,  the  amount  of  taxes  due  and  unpaid,  and 
that  all  the  forms  of  law  in  relation  to  the  assessment  and  levy  of  such  taxes 
have  been  complied  with.  [Ainendmenf,  approved  March  24,  1874;  Amendments 
1873-4,  149;  took  effect  from  passage.'^'' 

3790.  Seizure  and  sale  of  personal  property  for  taxes. 

Sec.  3790.  The  tax  collector  may,  after  the  first  Monday  in  Februaiy  in  each 
year,  in  each  of  the  counties  of  this  state,  except  in  the  city  and  county  of  San 
Francisco,  and  may,  after  the  first  Monday  in  March  in  each  year,  in  said  city 
and  county  of  San  Francisco,  collect  the  taxes  due  on  personal  property, 
except  when  real  estate  is  liable  therefor,  by  seizure  and  sale  of  any  personal 
property  owned  by  the  delinquent.  [Ameyidment,  approved  Januanj  15,  1876; 
Amendments  ISl  5-6,  61;  took  effect  from  passage.'''''' 

{a)  The  original  section  consisted  of  the  first  sen-         (c)  The  original  section  did  not  have  the  words  "in 

tence  alone,  with  the  exception  that  it  had  the  word  each  of  the  counties  ot  this  state,  except  lu  the  city 

"  primary  "  instead  of  "  prima  facie."  and  county  of  San  Francisco,  and  may  after  the  first 

It  was  previously  amended  by  act  of  March  30,  1874;  Monday  in  March  in  each  year  lu  said  cti.v  and  county 

Amendments  187a-4,  54,  bo  as  merely  to  change  the  of  San   Francisco."    The   amendatory   act  also  nmn- 

Tvord  "  primary  "  into  "  prima  facie."  bered  the  section  "  3704 ;"  but  such  number  seems  60 

(b)  The  original  section  had  the  word  "  primary "  plainly  an  error  that  the  original  numbering  is  re- 

instead  of  "  prima  facie."  tained  with  this  explanation. 

463 


u^^ 


H^l 


3791-3801  POLITICAL  CODE. 

3791.  Manner  of  conducting  sale,  elc. 

Sec.  3701.  The  sale  must  be  at  public  auction,  and  of  a  sufficient  amount  of 
the  property  to  pay  the  taxes,  percentage,  and  costs. 

3792.  Samr. 

tJEC.  87i»'2.  The  sale  must  be  made  after  one  week's  notice  of  the  iime  and 
place  thereof,  given  by  publication  in  a  newspaper  in  the  county,  or  by  posting 
in  three  public  places. 

3793.  Collrctor's  charges  for  conducling  sale  and  for  seizure. 

Sec.  3793.  For  seizing  or  selling  personal  jDroperty,  the  tax  collector  may 
charge  in  each  case  the  sum  of  three  dollars,  and  the  same  mileage  as  is 
allowed  by  law  to  the  sheiiff  of  the  county. 

3794.  Tide  to  such  property  vests  in  purchaser  on  payment,  etc. 

Sec.  3794.  On  payment  of  the  price  bid  for  any  proj^erty  sold,  the  delivery 
thereof,  with  a  bill  of  sale,  vests  the  title  thereto  in  the  jjurchaser. 

3795.  Excess  of  p)roceeds  over  taxes  and  costs  returned  to  owner,  etc. 

Sec.  3795.  All  excess  over  the  taxes,  per  cent.,  and  cost  of  the  proceeds  of 
any  such  sale,  must  be  returned  to  the  owner  of  the  property  sold,  and  until 
claimed  must  be  deposited  in  the  county  treasury,  subject  to  the  order  of  the 
owner,  heirs,  or  assigns. 

3796.  Unsold  portion  to  he  left  at  p)lace  of  sale  at  risk  of  owner. 

Sec  3796.  The  unsold  portion  of  any  j^roperty  may  be  left  at  the  place  of 
sale  at  the  risk  of  the  owner. 

3797.  Final  settlement  of  collector  with  auditor. 

Sec  3797.  The  tax  collector  must,  annually,  on  the  third  Monday  of  March, 
attend  at  the  office  of  the  auditor  with  the  delinquent  list,  and  the  auditor 
must  then  carefully  compare  the  list  with  the  assessments  of  persons  and  prop- 
erty not  marked  "paid"  on  the  assessment  book,  and  when  taxes  have  been 
paid,  must  note  the  fact  in  the  ai:)propriate  column  in  the  assessment  book. 

3798.  Same. 

Sec  3798.  The  auditor  must  then  administer  to  the  tax  collector  an  oath,  to 
be  >\Titten  and  subscribed  in  the  delinquent  list,  that  every  person  and  all 
property  assessed  in  the  delinquent  list  on  which  taxes  have  been  paid  has  been 
credited  in  the  list  with  such  payment. 

3799.  Same. 

Sec  3799.  The  auditor  must  then  foot  up  the  amount  of  taxes  remaining 
unpaid,  and  credit  the  tax  collector  with  the  amount,  and  have  a  final  settle- 
ment witli  him;  and  the  delinquent  list  must  remain  on  file  in  the  auditor's 
office.  In  the  city  and  county  of  San  Francisco  the  auditor  must  charge  the 
collector  with  the  amount  due  on  such  list,  and  must  return  to  such  collector 
the  coi)y  of  the  assessment  book.  {Amendment,  approved  April  3,  1876;  Amend- 
mcnls  1875-6,  58;  took  ej/'eclfrom  passage. '•"'> 
3E00.  Collector  to  make  certain  affidavit. 

Sec  3800.  At  the  time  mentioned  in  section  3797,  the  collector  must  make  an 
affidavit,  indorsed  on  the  list,  that  the  taxes  not  marked  "Paid"  have  not  been 
j)aid,  and  that  he  has  not  Ijcen  able  to  discover  any  property  belonging  to,  or 
in  possession  of,  the  persons  liable  to  pay  the  same  whereof  to  collect  them. 

3201.  [Skc  3801""  was  rei.calod  by  act  approved  March  24, 1874;  Amendments 
1873-4,  150;  to(jk  eflect  from  passage.] 

(n)  Th<- original  Ktctlon  conslHttd  of  the  first  sen-  must  be  filed  by  the  imditor  with  the  clerk  of  the  board 

tenc-e  alone.  of  supcrviKors,  itnd  the  boiird   may  canL-el   all  taxes 

('<)  Kf-ptab-d  Bcctlnn:  which  in  its  opinion  cannot  be  collected,  and  return 

Bec.  abOl.  A  hlateuicnt  of  the  amount  of  unpaid  taxes  the  statement  to  the  auditor. 

464 


EEVENUE.  3802-3811 

3802.  [Sec.  3802'*>  was  repealed  by  act  approved  April  3,  187G;  Amendments 
1875-6,  58;  took  effect  from  passage.] 

3803.  Bate  of  interest  on  delinquent  faxes. 

Sec.  3803.  Interest  at  the  rate  of  two  per  cent,  per  month  must  be  collected 
on  such  delinquent  taxes  from  the  time  they  were  first  delinquent  until  paid. 

3804.  Taxes,  etc.,  illegally  collected  to  be  refunded.  ^^    ^ 
Sec.  3804.  Any  taxes,  per  centum  and  costs  erroneously  or  illegally  collected,  / 

may  by  the   order  of  the  board  of  supervisors,   be  refunded  by  the  county 
treasurer. 

3805.  When  land  assessed  more  than  once. 

Sec.  3805.  When  the  collector  discovers  that  any  propei'ty  has  been  assessed 
more  than  once  for  the  same  3'ear,  he  must  collect  onl}'  the  tax  justly  due,  and 
make  return  of  the  facts  under  affidavit  to  the  county  auditor, 

3806.  Land  irregularly  assessed,  etc. ,  not  to  be  sold. 

Sec.  3806.  If  the  collector  discovei's  before  the  sale  that  on  account  of  irreg- 
ular assessment,  or  of  any  other  error,  any  land  ought  not  to  be  sold,  he  must 
not  offer  the  same  for  sale;  and  the  board  of  supervisors  must  cause  the  assessor 
to  enter  the  uncollected  taxes  upon  the  assessment  book  of  the  next  succeeding 
year,  to  be  collected  as  other  taxes  entei-ed  thereon. 

3807.  What  viistakes  do  not  affect  sale  of  j)roperty  for  taxes. 

Sec.  3807.  When  land  is  sold  for  taxes  correctly  imposed  as  the  property  of  a 
particular  person,  no  misnomer  of  the  owner,  or  supjDosed  owner,  or  other  mis- 
take relating  to  the  ownership)  thereof,  affects  the  sale,  or  renders  it  void  or 
voidable, 

3808.  Collection  of  taxes  from  joersons  removed  to  another  county. 

Sec.  3808.  If  any  person  removes  from  one  county  to  another,  after  being 
assessed  on  personal  proj^erty,  the  collector  of  the  county  in  which  he  was 
assessed  may  employ  an  attorney  to  sue  for  and  collect  the  same  in  the  asses- 
sor's name. 

3809.  Same. 

Sec.  3809.  On  the  trial  a  certified  copy  of  the  assessment,  signed  by  the  aud- 
itor of  the  county  where  the  same  was  made,  with  the  affidavit  of  the  collector 
thereto  attached,  that  the  tax  has  not  been  paid,  describing  it  as  on  the  assess- 
ment book  or  delinquent  list,  is  primary  evidence  that  such  tax  and  the  i^er 
centum  is  due,  and  entitles  him  to  judgment,  unless  the  defendant  proves  that 
the  tax  was  paid. 

3810.  Expenses  of  such  proceeding,  how  jMid. 

Sec.  3810.  The  treasurer  and  auditor  must  allow  the  expenses  of  collecting 
such  tax,  and  permit  a  deduction  thereof  from  the  amount  collected,  if  they  do 
not  exceed  one  third  of  the  amount  of  the  tax  collected. 

3811.  Validity  of  sale— Protest. 

Sec.  3811.  Whenever  property  is  advertised  for  sale  for  the  non-payment  of 
delinquent  taxes,  and  the  assessment  is  valid  in  part  and  void  for  the  excess, 
the  sale  shall  not  for  that  cause  be  deemed  invalid,  nor  any  grant  subsequently 
made  thereunder  be  held  to  be  insufficient  to  pass  a  title  to  the  grantee,  unless 
the  owner  of  the  jn-operty,  or  his  agent,  shall,  not  less  than  six  days  before  the 
time  at  which  the  property  is  advertised  to  be  sold,  deliver  to  the  tax  collector 
a  protest,  in  writing,  signed  by  the  respective  owner  or  agent,  specifying  the 
portion  of  the  tax  which  he  claims  to  be  invalid,  and  the  grounds  upon  which 
such  claim  is  based.  [Neio  section,  approved  March  24,  1874;  Amendments  1873-4, 
150;  took  effect  from  passage. 

(a)  Repealed  section:  the  auditor  on  the  asBCBsment  book  of  each  succeeding 

Sec.  3802.  All  taxes  not  canceled  must  be  entered  by     year,  until  paid. 

30  465 


3812-3816  POLITICAL  CODE. 

3812.  DuUj  of  tax  coUector-on  receiving  protest. 

Sec.  3812.  In  case  any  owner  of  propert}',  advertised  to  be  sold  for  delinquent 
taxes,  shall,  at  least  six  days  before  the  time  advertised  for  the  sale  to  take 
l^lace'  deliver  to  the  tax  collector  his  protest  in  writing-  against  such  sale,  signed 
bv  himself  or  his  agent,  claiming  that  the  assessment  is  void  in  whole  or  in 
part— and  if  in  part  only,  for  what  portion,  and  in  either  case  specifying  the 
grounds  upon  which  such  claim  is  founded— it  shall  be  the  duty  of  the  tax 
collector,  either: 

1.  To  sell  the  property  assessed  for  the  whole  amount  appearing  upon  the 
duplicate  assessmeut  book;  or, 

2.  AVithdraw  the  property  from  sale,  and  report  the  case  to  the  state  board 
of  equalization  for  its  direction  in  the  premises;  and  in  such  case  the  board  of 
equalization  may  either  direct  the  foreclosure  of  the  lien  of  such  tax  by  action, 
which  proceeding  is  hereby  authorized  to  be  had,  or  direct  the  collector  to  pro- 
ceed with  the  sale.  [New  section,  approved  March  2-4, 1874;  Amendments,  1873-4, 
150;  touk  effect  from  passage.  • 

3813.  Assessment  and  sale  of  property  purchased  hy  state. 

Six-.  3813.  In  case  property  assessed  for  taxes  is  purchased  by  the  state,  pur- 
suant to  the  provisions  of  section  3773  of  this  code,  it  shall  be  assessed  the  next 
vear  for  taxes  in  the  same  manner  as  if  it  had  not  been  so  purchased.  But  it 
shall  not  be  exposed  for  sale;  and  the  sale  thereof,  under  such  assessment,  shall 
be  adjourned  until  the  time  of  redemption,  under  the  previous  sale,  shall  have 
expired.  [New  section,  approved  March  24,  1874;  Amendments  1873-4,  150;  took 
effect  from  passage. 

3814.  No  sale  unless  directed  by  board  of  equalization. 

Sec.  3814.  In  case  an  assessment  is  made  under  the  provisions  of  section  3813 
of  this  code,  and  the  lands  are  not  redeemed  from  a  previous  sale  had  under 
section  3773,  as  provided  by  law,  no  sale  shall  be  had  under  the  assessment 
authorized  by  said  section  3813,  unless  directed  by  the  state  board  of  equaliza- 
tion. [Xew  section,  approved  March  24,  1874;  Amendments  1873-4,  150;  took 
effect  from  passage. 

3815.  Ih'demption  of  propjerty  sold  to  state. 

Sec.  3815.  In  case  property  is  sold  to  the  state  as  purchaser,  pursuant  to 
section  3773  of  this  code,  and  is  subsequently  assessed  pursuant  to  section 
3810  of  this  code,  no  person  shall  be  permitted  to  redeem  from  such  sale, 
except  upon  payment  also  of  the  amount  of  such  subsequent  assessment,  cost, 
fees,  and  interest.  [New  section,  approved  March  24, 1874;  Amendments  1873-4, 
150;  look  el/ect  from  passage. 

3816.  .Moneys  received,  how  distributed. 

•(xiT  Skc  3S10.  ^Vhonover  pro[)erty  sold  to  the  state,  pursuant  to  the  provisions 
u  M<j  of  this  chapter,  shall  be  redeemed,  as  herein  j^rovided,  the  moneys  received  on 
account  of  such  redemption  shall  be  distributed  between  the  state  treasurer  and 
the  county  treasurer,  and  to  the  respective  funds,  in  the  same  manner  as  if  the 
sunic  had  been  paid  in  the  first  instance  to  the  tax  collector.  The  county  treas- 
urer hIiuH  keep  an  account  of  such  taxes  so  represented  by  such  sales,  and  shall, 
on  the  first  Monday  of  March  in  each  year,  make  a  detailed  report  of  each 
account,  year  for  year,  to  the  state  treasurer.  Whenever  the  state  shall  receive 
from  the  tax  collector  any  grant  of  property  so  sold  for  taxes,  the  same  shall 
be  recordeil,  at  the  retjuest  of  the  county  treasiirer,  free  of  charge  by  the 
county  recorder,  and  shall  be  immediately  reported  by  the  county  treasurer  to 
the  board  of  equalization.  [Aefo  section,  approved  3Iarch  24,  1874;  Amendments 
1873-4,  150;  took  effect  from  j>assage. 

4GG 


^^/9 


REVENUE.  3820-381^.9 


CHAPTER  VIII. 

COLLECTION   OF   TAXES   BY   THE   ASSESSOR   ON   CERTAIN   PERSONAL   PROPERTY. 

3820.    W]ie)x  taxes  on  personal  properly  invst  be  collected  by  assessor. 

Sec.  3820.  The  assessor  must  collect  the  taxes  on  all  jiersoiial  lu'operty  wlien, 
in  liis  opinion,  said  taxes  are  not  a  lien  upon  real  pro])erty  sufficient  to  secure 
the  jDayment  of  the  taxes;  provided,  that  in  the  city  and  county  of  San  Fran- 
cisco the  tax  collector  shall  collect  such  taxes  at  any  time  after  the  assessment. 
[Amendment,  approved  2Iarch  24,  1874;  Amendments  1873-4, 152;  took  effect  from 
passage.  .'■"^ 

3S21.  Assessor  may  collect  such  taxes  by  seizure  and  sale. 

Sec.  3821.  In  the  case  provided  for  in  the  i^receding  section  at  the  time  of 
making  the  assessment,  or  at  any  time  before  the  first  Mondaj^  of  July,  the 
assessor  may  collect  the  taxes  by  seizure  and  sale  of  any  personal  property 
owned  by  the  person  against  whom  the  tax  is  assessed. 

3822.  Mode  of  conducting  such  seizure  and  sale. 

Sec.  3822.  The  provisions  of  sections  3791,  3792,  3793,  3794,  3795,  and  3796 
apply  to  such  seizure  and  sale. 

3823.  Amounts  to  be  collected,  hoiv  determined. 

Sec.  3823.  The  assessor  and  collector  are  governed,  as  to  the  amount  of  taxes 
to  be  by  him  collected  on  personal  property,  by  the  state  and  county  rate  of 
the  previous  year.  [Aviendmenf,  approved  March  24, 1874;  Amendments  1873-4, 
152;  took  effect  from  passage.'-^'' 

3824.  When  excess  of  rate  has  been  charged,  such  excess  to  be  returned. 

Sec.  3824.  When  the  rate  is  fixed  for  the  year  in  which  such  collection  is 
made,  then  if  a  sum  in  excess  of  the  rate  has  been  collected,  the  excess  must  be 
repaid  to  the  person  from  whom  the  collection  was  made,  or  to  his  assignee. 

3825.  When  less  than  the  rate  has  been  charged,  etc. 

Sec.  3825.  If  a  sum  less  than  the  rate  fixed  has  been  collected,  the  deficiency 
must  be  collected  as  other  taxes  on  personal  property  are  collected. 

3826.  Monthly  settlement  of  assessor  with  auditor. 

Sec  3826.  The  assessor,  on  the  first  Mondaj^  of  each  month,  must  make  a 
settlement  with  the  aviditor,  and  must  pay  into  the  county  treasury  all  moneys 
collected  by  him  for  such  taxes  during  the  preceding  month,  less  the  compen- 
sation allowed  him  for  making  such  collection. 

£827.  Auditor  to  note  in  assessment  book  amount  of  taxes  paid. 

Sec.  3827.  The  auditor  must,  as  soon  as  the  "  assessment  book  "  for  the  year 
comes  into  his  hands,  note  opposite  the  names  of  each  person  from  whom  taxes 
have  been  collected  the  amount  thereof. 

3828.  Auditor  to  note  excesses  or  deficiencies  in  taxes  paid. 

Sec.  3828.  As  soon  as  the  rate  of  taxation  for  the  year  is  fixed,  the  auditor 
must  note,  in  connection  with  the  entry  made  under  the  provisions  of  the  pre- 
ceding section,  the  amount  of  the  excess  or  deficiency. 

3829.  Compensation  of  assessor  for  collecting. 

Sec.  3829.  For  services  rendered  in  the  collection  of  taxes,  the  assessor  shall 
receive  one  per  cent,  on  the  amount  by  him  collected;  provided,  that  all  fees 
or  commissions  collected  under  this  or  any  other  act  by  the  salaried  officers  in 

(a)   Original  section:  ('')  The  original  section  instead  of  "and  collector 

Sec.  3S.;0.  The   assessor  must  collect  the  taxes  on  are  "had  the  word  "is,"  and  instead  of  "  personal"  it 

movable  personal  property  when  such  taxes  are  not  a  had  the  word  "  movable." 

lien  upon  real  property. 

467 


3829-3841  POLITICAL  CODE. 

and  for  the  city  and  county  of  San  Francisco,  shall  be  by  said  officers  paid  into 
the  county  treasury  for  the  use  of  said  city  and  county.  [Amendment,  ap- 
proved March  24,  1874;  Amendments  1873-4,  153;  took  effect  from  passage}"'' 

3830.  Present  incumbents  to  collect. 

Sec.  3830.  In  every  county  in  this  state  where  any  officer  other  than  the 
asses.sor  is  charged  with  the  collection  of  taxes  upon  personal  property  not  a 
lieu  upon  real  property,  such  officer  must,  until  after  the  expiration  of  the 
term  of  the  present  incumbent,  discharge  the  duties  cast  upon  the  assessor  under 
the  provisions  of  this  chapter,  [Neio  section,  approved  March  27,  1872;  1871-2, 
58G;  tooL-  c(f'ectfrom  passage. 

CHAPTER  IX. 

POLL   TAXES. 

3839.  Persons  liable  to  poll  fax. 

Stc.  3839.  Every  male  inhabitant  of  this  state,  over  twenty-one  and  under 
sixty  years  of  age,  must  annually  pay  a  poll  tax  of  two  dollars;  provided,  the 
same  be  paid  between  the  first  Monday  in  March  and  the  first  Monday  in  July; 
but  if  not  i)aid  prior  to  the  first  Monday  in  July,  then  it  shall  be  three  dollars. 
[Amendment,  approved  March  30,  1874;  Amendments  1873-4,  IGl;  took  effect 
immediately.''^^ 

An  .\ct  to  exempt  firemen  in  Nevada,  Placer,  El  Dorado,  Alameda,  aud  Siskiyou  counties 

from  the  paj'ment  of  poll  tax. 

Approved  March  27,  1874;  1873-4,  731. 

[This  act,  which  provided  for  the  exemption  of  active  members  of  unpaid  fire 
companies,  organized  in  pursuance  of  the  ordinances  of  the  incorporated  cities, 
towns,  and  villages  of  Nevada,  Placer,  El  Dorado,  Alameda,  Santa  Clara, 
Solano,  Sonoma,  and  Siskiyou  counties,  was  repealed  by  act  approved  March 
15,  187G;  1875-G,  287;  took  effect  from  passage.} 

.\n  Act  to  authorize  the  board  of  su])ervisors  of  Santa  Clara  county  to  exempt  firemen  from 
the  payment  of  poll  taxes  for  county  purposes. 

Approved  March  30,  1874;  1873-4,  825. 

Firemen  in  Santa  Clara  county. 

Skction  1.  The  board  of  supervisors  of  the  county  of  Santa  Clara  are  hereby 
authoiized  to  i)ass  an  order  relieving  all  active  firemen  in  said  county  from 
payment  of  any  aud  all  poll  taxes  for  county  purposes. 

Si.c.  2.  This  act  shall  take  effect  from  and  after  its  jmssage. 

3840.  Poll  lax  to  be  collected,  ivhen. 

Sec.  3840.  Poll  tax  must  be  collected  by  the  assessors  between  the  first  Mon- 
day in  March  and  the  second  Monday  in  January  of  the  ensuing  year.  [Amend- 
ment, ujiproved  March  30,  1874;  Amendments  1873-4,  IGl;  took  effect  imme- 
dial'ly."' 

3841.  Coiaitij  treasurer  to  have  blank  poll  tax  receipts  printed. 

Skc.  384L  The  county  treasurer  must,  before  the  first  Monday  of  March  and 
tlio  first  Monday  in  July  of  each  year,  cause  to  be  printed,  respectively,  of  two 
and  three  dollars  Idank  poll  tax  receijits,  a  sufficient  number  for  the  use  of  the 
assessor.  [Amendment,  apjjroved  March  30,  1874;  Amendments  1873-4,  161; 
look  effect  immediately."^^ 

(a)  OriKlnaUortlon:  (r)  The  oriRlnal  section  after  the  words  "  between 

Hr.r.  -.itsTJ.  Por  K(T\iec8  rc-ndcrod  In  thf^  collection  of  the  "  proceeded  uk  follows:  "  sccoiid  Monday  in  Janu- 

dcliiiqueiit  taxes  the  aswHUor  iiiUHt  receive  the  same  uo' and  the  second  Monday  of  October  in  each  year." 

coiriiieriHdtloii  as  Is  allowed  by  law  U>  the  tax  collector  (</)  Original  section: 

for  Hlinilar  H<rvlc.-s.                ,     ,     .  Sec.  3841.  The  coiuity  treasurer  must,  before  the  sec- 

{hl  The  original  section  had   the   words   "(not  ex-  ond    Monday  in  January  of  each  year,   cause  to  be 

empt  by  law) "  after  '•  age,"  and  did  not  have  the  pro-  printed  of  blank  poll  tiix  receii)tB  a  number  suificient 

^'i^o.  for  the  use  of  the  usseiisor. 

4G8 


EEVENUE.  3842-3850 

3842.  Style  of  blank  to  be  changed  each  year. 

Sec.  3842.  The  style  of  such  blanks  must  be  changed  every  year. 

3843.  Treasurers,  duty  in  relation  to  poll  tax  blanks  and  Yeceipl. 

Sec.  3843.  The  treasurer  must,  before  the  first  Monday'  in  March  of  each 
year  : 

1.  Number  and  sign  the  two-dollar  blanks,  and  before  the  first  Monday  in 
July,  number  and  sign  the  three-dollar  blanks. 

2.  At  the  time  of  signing,  make  an  entry  of  the  whole  number  thereof,  and 
of  the  first  and  last  number  placed  thereon,  in  a  book  by  him  kept  for  that 
purpose. 

3.  Deliver  all  such  blanks  to  the  auditor,  and  charge  him  therewith.  [Amend- 
ment, approved  Ilarch  30,  1874 ;  Amendments  1873-4,  IGl ;  took  effect  imme- 
diately ^'^^ 

3844.  Auditor  to  sign  blank  receipts  and  make  entry  of  number  signed. 

Sec.  3844.  The,  auditor  upon  the  receipt  thereof  must  sign  the  same,  and 
make  in  a  book  to  be  kept  by  him  for  that  purpose  a  similar  entry  to  that  pre- 
scribed in  subdivision  2  of  the  preceding  section. 

3845.  Blanks  to  be  delivered  to  assessor. 

Sec.  3845.  He  must,  at  any  time  after  the  first  Monday  in  March  and  the  first 
Monday  in  July,  upon  demand,  deliver  to  the  assessor,  in  their  order,  the  two 
and  three  dollar  blanks,  and  charge  him  therewith.  [Amendmeid,  approved  March 
30,  1874;  Amendm^ents  1873-4,  162;  took  effect  immediately}"^ 

3846.  Poll  tax  may  be  collected  by  seizure,  etc.,  of  personal  j:>roperty. 

Sec  3846.  The  assessor  must  demand  payment  of  poll  tax  of  eveiy  person 
liable  therefor,  and  on  the  neglect  or  refusal  of  such  person  to  pay  the  same, 
he  must  collect  by  seizure  and  sale  of  any  personal  property  owned  by  such 
person.  [Amendment,  approved  March  30,  1874;  Amendments  1873-4,  162;  took 
effect  immediately .'-"'> 

3847.  Seizure  and  sale,  how  conducted. 

Sec  3847.  The  sale  may  be  made  after  three  hours'  verbal  notice  of  time  and 
place,  and  the  provisions  of  sections  3791,  3793,  3794,  3795  and  3796  apply  to 
such  seizure  and  sale.  [Amendment,  ^approved  March  30,  1874;  Amendments 
1873-4,  162;  look  effect  immediately. ^"^^ 

3848.  Debtors  of  persons  owing  poll  tax  to  pay  poll  tax  for  such  persons. 

Sec  3848.  Every  person  indebted  to  one  who  neglects  or  refuses^  after 
demand,  to  pay  a  poll  tax,  becomes  liable  therefor,  and  must  pay  the  same  for 
such  other  person  after  service  upon  him  by  the  collector  of  a  notice  in  writing, 
stating  the  name  of  such  person. 

3849.  Who  are  debtors  under  the  preceding  section. 

Sec  3849.  Every  officer  authorized  to  draw  the  warrants  for  or  to  pay  the 
salary  or  fees  of  any  officer  is  the  debtor  of  such  officer  within  the  meaning  of 
the  preceding  section. 

3850.  Debtor  may  charge  his  creditor  for  such  poll  tax  paid. 

Sec  3850.  Every  person  paying  the  poll  tax  of  another  may  deduct  the  same 
from  any  indebtedness  to  such  other  person. 

(a)  The  original  section  did  not  have  the  words  "At  ( c)   Origina^  section:                                                 ^^^^ 

the  time  of  signing"  in  the  second  subdivision.     The  Sec.  3t(4b    ihe  ''JsesBor  may  ^"i'^",         /     j    „f  ^uy 

first  clause  and  the  first  subdivision  were  as  follows:  any  person  liabe  "'^^^f.^^^J^^.'iJ'''/^..^"'^  ^"'^        "''^ 

Sec.  3843.   The  treasurer  must,  before  the  second  personal  property  o«ued  bj  such  perton. 

Monday  in  January  of  each  year:  W   "^^f^^'IpheVrovislons  of  sections  3791.  3792.3793, 

6)  OnSrsectkmr  3794   ^795,  and  379G,  apply  to  such  seizure  and  sale. 

Sec.  384.5.  He  must  at  anytime  after  the  second  Mon- 
day in  January,  upon  demand,  deliver  such  blanks  to 
the  county  assessor  and  charge  him  therewith. 

469 


3851-3859  POLITICAL  CODE. 

3851.  Il'veipt  for  poll  tax  delivered  to  purchaser  of  property  sold  for  such  tax. 
Sec.  3851.  The  assessor  must  deliver  the  poll  tax  receipt,  filled  out  with  the 

name  of  the  person  owing  the  taxes,  to  the  purchaser  of  property  at  any  such 
sale;  in  other  cases  he  must  deliver  it,  tilled  out  in  like  manner,  to  the  person 
paying  the  tax. 

3852.  lieceijit  only  evidence  of  payment. 

Sec.  3852.  The  receipt  so  delivered  is  the  only  evidence  of  payment. 

3853.  Monthly  settlevient  of  aasessor  with  auditor  for  poll  taxes. 

Sec.  3853.  On  the  first  Monday  in  each  month  the  assessor  must  make  oath, 
before  the  auditor,  of  the  total  amount  of  poll  taxes  collected  by  him  during  the 
last  preceding  month,  and  must,  at  the  same  time,  settle  Avith  the  auditor  for 
the  same,  and  pay  into  the  county  treasurer's  office  the  total  amount  of  poll 
taxes  collected,  less  the  per  centum  allowed  for  fees. 

3854.  A.-'.<ess(»:-' ,  i-eturn  of  receipts  to  auditor  and  yearly  settlement. 

Sec.  3854.  On  the  fir.st  Monda}'  in  July  the  assessor  must  return  to  the  aud- 
itor all  two-dollar  blank  poll-tax  receij^ts  received  by  him  and  not  used,  and  pay 
to  the  treasurer  the  total  amount  collected  and  not  before  paid  in,  less  the  amount 
of  his  fees,  and  the  auditor  must  deliver  to  him  the  three-dollar  receipts;  and  on 
the  .second  ^londay  in  Januaiy  of  each  year  he  must  return  to  the  auditor  all 
the  three-dolliu-  poll-tax  receipts  received  by  him  and  not  used,  and  must  make 
final  settlement  with  the  auditor  and  treasurer  therefor.  [Amendment,  approved 
March  30,  1874:;  Amendments  1873^,  163;  took  effect  immediately.'^^'' 

3855.  Auditor  to  return  receipts  not  used  to  the  treasurer. 

Sec.  3855.  The  auditor  must,  as  soon  as  the  settlement  is  made,  return  to  the 
treasurer  the  receijits  not  used. 

3856.  Treasurer  to  credit  auditor  with  such  receipts. 

Sec.  385G.  The  treasurer  must  credit  the  auditor  with  the  receipts  so  returned, 
and  must  thereujjon  seal  them  up  securely  and  dei)0sit  and  keep  them  in  his 
office. 

3857.  Assessors  to  keep  roll  of  persons  liable  for  poll  tax.' 

Sec.  3857.  The  assessor  must  keej:)  a  roll  of  the  names  and  local  residence  or 
T  place  of  business  of  all  persons  subject  to  or  liable  for  poll  tax,  and  if  paid, 
date  and  amount  of  each  payment,  and  if  not  paid,  cause  of  non-payment;  i>ro- 
vided,  that  no  person  shall  be  returned  as  delinquent  on  such  roll  unless  a  i)er- 
soual  demand  has  been  made  upon  him.  [Amendment,  approved  March  30, 1874; 
Amriidinnits  1873-4,  1G3;  tooL  effect  immediately.'^^'' 

3858.  Such  roll  to  be  rcjumed  to  auditor. 

Sec.  3858.  On  the  second  Monday  in  January  of  each  year  the  assessor  must 
deliver  to  the  auditor  the  roll  so  made  up,  and  the  auditor  must  add  to  the 
total  i»o]l  tax  deliiKpient  on  such  roll  thirty -three  and  one  third  per  centum 
additional,  and  without  delay  deliver  such  hst  to  the  tax  collector,  and  charge 
tiie  collector  therewith.  [Amendment,  approved  March  30,  1874;  Amendments 
1873-4,  1G3;  ti,olc  effect  immediately.'"'' 

S859.  ISkc.  3851)""  was  rei)raled  by  act  approved  March  30,  1874;  Amend- 
ments 1873-4,  1G4;  took  eflect  immediately.] 

('II   OriKlimlwctloii:  (j)   Original  hc.tim: 

hKC  .tKM.   On   th.-   wrofxl   Mondiiy  In   OrtoWr  tho  8ko.  asr.H.  On  the  Kccond  Monday  in  Ottober  in  each 

•JMMMK.r  jiiuKt  r.  turn  U,  tlir  ■n.lit<.r  nil  i.oll  t..x  r-.-cipts  y<ar  the  officer  muBt  return  to  the  auditor  the  roll  80 

.'...IN.. I  ).v  htm  and  not  iiM'd:Bnd   maki- lliinl  licttlo-  mnde  up. 

II..   «udll-,r  thipfor.  and  j.ay  to  th.-  tr<BB-  (di  Uepenled  gwtion: 

I  .1  aiffiiiiit  .oll.M-ted  aiid  not  iM-fr.re  paid  In,  Sec.  38.V.1.  If  any  person  aBflessed  for  a  property  tax 

I                 ""'  "'    ''"■''■<■•'•  liaa  not  pnid  to  the  aKKCKKOr  the  poll  tax  due  IroTii  him 

'  or  for  whiih   he  in  llHble,  tlie  auditor  niuKt  note  tho 

/'                                  -   rniu«t  keepan.ll  of  the  naineg  fart  upon  the  aBBCBBiutnt  roll  before  he  deliveri.  it  to 

•J'  "     .    •  t..  or  liable  for  poll  Ux,  and  the  the  collector. 

aat4:  aiid  aiiiouiit  u(  each  jiajineDt. 

470 


REVENUE.  3800-  38GG 

3860.  Poll  tax  to  be  a  lien  on  property,  u-hen. 

Sec.  38G0.  If  any  person,  assessetl  for  a  property  tax,  has  not  paid  to  tlie 
assessor  the  poll  tax  due  from  him,  or  for  wliich  he  is  liaLle,  it,  with  thirty- 
three  and  one  thii-d  per  cent,  in  addition  thereto,  constitutes  a  lien  upon  tlie 
property  assessed,  to  such  person,  to  attach  from  the  first  Monday  in  INIarcli  in 
each  year,  and  must  be  collected  in  the  same  njanner  and  at  the  kuiuc  time 
as  delinquent  taxes  are  collected.  [Amenchnenl,  approved  March  30,  1874; 
Amendments  1873-4,  1G4;  took  effect  immediately.''^'' 

3861.  Proceeds  of  poll  tax,  to  xchat  funds  paid.  /  z' 
Sec.  38G1.  The  proceeds  of  the  poll  ta.x  must  be  paid  into  [\\o  sdux.l  fund  i.f 

the  county.     {  ^f^    CUM-Uy^^  K^»M^  ^-  ■ 

An  Act  to  provide  for  the  disposition  of  the  iiroceeds  of  jjoll  taxes  in  the  couutj-  of  El  Dorudo. 
Approved  March  30,  1874;  1873-4,  041. 

Poll  taxes  in  El  Dorado  county. 

Section  1.  All  proceeds  of  poll  taxes  received  into  the  county  treasury  of 
El  Dorado  county,  must  be  placed  to  the  credit  of  the  school  fimd  of  said 
county. 

Sec.  2.  This  act  shall  take  effect  from  and  after  its  j^assage. 

3862.  Compensation  allowed  to  assessor  for  collecting  such  tax. 
Sec.  38G2.  The  assessor,  for  services  rendered  in  the  collection  of  poll  taxes, 

shall  receive  the  sum  of  fifteen  (15)  j^er  cent.,  and  the  collector,  for  services' 
rendered  in  the  collection  of  poll  taxes  on  the  delinquent  list  (including  the  ' 
publication),  shall  receive  the  sum  of  twenty-five  per  cent,  on  all  delinquent 
poll  tax  collected  b}'  him;  provided,  that  in  the  city  and  county  of  San  Fran- 
cisco, all  moneys  collected  under  the  joro visions  of  this  act,  by  the  tax  collector, 
shall  be  paid  into  the  public  treasury,  and  belong  thereto,  as  other  public  funds. 
[Ameiidment,  appi'oved  2Iarch  30,  1874;  Amendments  1873-4,  1G4;  took  effect  im- 
med  lately. '-^^ 

CHAPTER  X. 

SETTLEMENTS  WITH  THE  CONTROLLEE  AND  PAYMENTS  INTO  THE  STATE  TEEASURY. 

3865.  County  treasurers  to  settle  loith  controller  upon  his  order. 

Sec.  3865.  The  treasurers  of  the  resjiective  counties  must  at  any  time,  upon 
the  order  of  the  controller  and  treasurer  of  state,  settle  with  the  controller,  and 
pay  over  to  the  treasurer  all  moneys  in  their  possession  belonging  to  the  state. 

3866.  Time  when  certain  treasurers  shall  make  settlement.  ^    ^, 
Sec  3866.  The  treasurers  of  the  counties  of  Amador,  Alameda,  Contra  Costa,    /  '^ 

Calaveras,  El  Dorado,  Nevada,  Placer,  Sierra,  Solano,  Yolo,  San  Francisco,  ^/  - 
Sacramento,  San  Joaquin,  Santa  Clara,  Tuolumne,  and  Yuba,  resj^ectively,  /7  ' 
must,  between  the  lifteenth  and  thirtieth  days  of  January,  April,  July,  and 
October  of  each  year,  and  the  county  treasurers  of  the  counties  of  Hundjoldt, 
Del  Norte,  and  Modoc  must,  between  the  fifteenth  and  thirtieth  days  of 
October  and  Aj)ril  in  each  year,  and  the  county  treasurers  of  other  counties  of 
this  state  must,  between  the  fifteenth  and  thirtieth  days  of  Januaiy  and  June, 
respectively,  in  each  year,  proceed  to  the  state  capitol  and  settle  in  full  with 
the  controller  of  state,  and  pay  over,  in  cash,  to  the  treasurer  of  state,  all  funds 

(a)  Original  section:  (6)   Original  section:                                            ,  .      ^ 

Sec.  3860.  The  amount  of  the  poU  tax.  with  fifty  per  Sec.  38e-.>.  The  assessor,  for  scr%-ices  rendered  in  the 

cent,  in  addition  thereto,  constitutet;  from  the  second  collection  of  poll  taxes,  must  receive  the  same  conipen- 

Monday  in  October  a  lien  upon  the  property  assessed  sation  as  is  allowed  by  law  to  tax  collectors  or  aseessors 

to  such  per.-on,  and  must  be  collected  in  the  same  for  similar  purposes, 
manner  and  at  the  same  time  as  taxes  upon  his  prop- 
erty are  collected, 

471 


38GG-3874  POLITICAL  CODE. 

which  hixve  come  iuto  their  hands  as  county  treasurers  before  the  close  of  busi- 
ness at  the  end  of  the  previous  month.  If  sufficient  j^ropei-ty  tax  has  not  been 
reported  by  the  auditor  to  pay  all  charges  and  commissions  allowed  by  law,  the 
controller  shall  defer  the  settlement  until  the  next  regular  settlement.  No 
mileage  shall  be  allowed  any  treasurer  for  any  deferred  settlement.  [Amend- 
ment, appi-oved  March  30,  18TG;  Amendmenis  1875-G,  G4:;  took  ejj'ect  sixtieth  day 
after  passage.^*^ 

3867.  Trea.ni7-e7-s  neglecting  to  settle;  penalty. 

Stc.  38G7.  Every  county  treasurer  who  neglects  or  refuses  to  appear  at  the 
office  of  the  controller  and  treasurer  at  the  times  specified  in  this  chapter,  and 
then  and  there  to  settle  and  make  payment  as  required  by  this  chapter,  forfeits 
all  fees,  percentage,  and  mileage  which  would  have  otherwise  been  due  him  on 
such  settlement;  and  the  controller  is  required  to  withhold  all  such  fees,  per- 
centage, and  mileage,  and  require  the  same  to  be  paid  into  the  treasury  for  the 
use  and  benefit  of  the  state. 

3868.  Settlement  of  county  auditors  loitli  controller. 

Sec.  38G8.  The  auditor  of  each  county,  between  the  first  and  fifteenth  day  of 
each  month  in  which  the  treasurer  of  his  county  is  required  to  settle  with  the 
controller,  must  make  in  duplicate  and  verify  by  his  affidavit  a  rejDortto  the  con- 
troller of  state,  showing  specifically  the  amount  dup  the  state  from  each  partic- 
ular source  of  revenue  at  the  close  of  business  on  the  last  day  of  the  preceding 
mouth. 

3869.  Auditor  to  transmit  report  to  controller  by  mail. 

Skc.  38G9.  The  auditor  must  at  once  transmit  by  mail  or  express  to  the  controller 
one  copy  of  the  report,  and  must  deliver  the  other  copy  to  the  treasurer  of  his 
county. 

3870.  Failure  of  auditor  to  make  report;  penalty. 

Sec.  3870.  Ever}-  auditor  who  fails  to  make  and  transmit  the  report  required 
by  this  chapter,  or  any  report  or  statement  required  by  this  title,  forfeits  all  com- 
pensation Avhich  would  be  otherwise  due  him  from  the  state;  and  the  controller 
is  required  to  withhold  such  compensation. 

3871.  Controller  to  deduct  fees  and  mileage,  etc.,  on  settlement. 

Sec  3871.  In  the  settlement  the  controller  must  deduct  the  commissions  and 
mileage  allowed  to  the  county  treasurer  for  his  services,  the  state's  portion  of 
the  repayments  made  under  section  3824:,  and  any  other  amount  due  the  county 
or  the  officers  thereof. 

3872.  Manner  of  making  payments  into  state  treasury. 

Skc.  3872.  The  manner  of  making  payments  into  the  state  treasury  is  pre- 
scribed by  sections  433,  434,  452,  and  453  of  this  code. 

3873.  C'ndrolh'r'x  statement  to  contain  what. 

Si-c.  3873.  The  controller  must,  after  the  treasurer  has  made  settlement  and 
payment,  enter  upon  each  copy  of  the  auditor's  report  a  statement  showing: 

1.  The  amount  of  money  by  the  county  treasurer  paid  into  the  state  treasury; 

2.  The  amount  deducted  for  commissions  and  other  allowances; 

— And  must  then  return  one  copy  of  the  report  to  the  county  treasurer. 

3874.  f'oiinly  treasurer  to  fie  controller's  statement  with  auditor. 

Sj;<  .  .'{874.  The  county  treasurer  must  file  with  the  auditor  of  his  county  the 
copy  returned  to  him  by  the  (;oiitroller. 

(<j)  TTn-  oriKlnal  wcUnn  had  th<-  word  •'  .Tuly  "  Instead  It  was  previoufily  amended  by  act  of  March  30,  1874: 

of  •■•June."    It   dJd   not  have  th«!  laht  two  sentenres  Anu-nrlnicntslHTH-i,  lor,,  bvinsortinR  the  word  "June"' 

commencing  with  the  wordu,  "if  Bufflcient  iiroperty  liiKt.ud  of  •' July  "  in  hotirplaciK  where  that  word  oo 

*■*•  curB,  uud  by  addiug  the  last  two  Beutences. 

472 


KEVENUE.  3875-3884 

3875.  Auditor  to  make  certain  entries. 

Sec.  3875.  The  auditor  must  then  make  the  proper  entries  in  his  account  with 
the  treasurer. 

3876.  Bate  of  mileage  allowed  treasurer. 

Sec.  3876.  The  controller  must,  in  the  settlement,  allow  the  treasurer  for 
mileage  at  the  rate  of  forty  cents  per  mile  from  the  county  seat  to  the  capital, 
such  mileage  not  to  exceed  at  any  settlement  one  hundred  dollars. 

3877.  Controller  may  examine  hookn  of  any  revenue  officer. 

Sec.  3877.  The  controller  may  examine  the  books  of  any  officer  charged  with 
the  collection  and  receipt  of  state  taxes. 

3878.  When  revenue  officer  guilty  of  defrauding ,  district  attoT^iey  to  prosecute. 
Sec.  3878.  If  he  believes  any  officer  has  been  guilty  of  defrauding  the  state 

of  revenue,  or  has  neglected  or  refused  to  perform  any  duty  relating  to  the 
revenue,  he  must  direct  the  district  attorney  or  other  counsel  to  prosecute  the 
delinquent. 

3879.  Controller  may  designate  county  in  wliich  action  to  he  tried. 

Sec.  3879.  When  any  law  in  relation  to  the  revenue  of  the  state  has  been  so 
far  violated  as  to  require  the  prosecution  of  the  offender  for  a  criminal  offense, 
or  proceedings  against  him  by  civil  action,  the  controller  may  designate  the 
county  in  which  the  prosecution  or  proceeding  may  be  had. 

3880.  Other  counsel  may  be  employed. 

Sec.  3880.  The  controller  or  attorney-general  may  employ  other  counsel  than 
the  district  attorney,  and  the  expenses  must  be  audited  by  the  board  of  exam- 
iners and  be  paid  out  of  the  state  treasury. 

CHAPTEE  XI. 

MISCELLANEOUS   PROVISIONS. 

3881.  Omissions,  errors  and  defects  inform  of  assessment  book,  how  corrected. 
Sec.  3881.  Omissions,  eiTors,  or  defects  in  form  in  any  original  or  duplicate 

assessment  book,  when  it  can  be  ascertained  therefrom  what  was  intended, 
may,  with  the  written  consent  of  the  district  attorney,  be  supplied  or  corrected 
by  the  assessor  at  any  time  prior  to  the  sale  for  delinquent  taxes  and  after  the 
original  assessment  was  made.  In  the  city  and  county  of  San  Francisco,  the 
written  consent  of  the  city  and  county  attorney  shall  have  the  same  force  and 
effect  as  the  written  consent  of  the  district  attorney.  [Amendment,  approved 
Aprils,  1876;  Amendments  1875-6,  58;  took  efect  from  passage.^"'' 

3882.  Omissions,  etc.,  in  delinquent  lists,  how  corrected. 

Sec.  3882.  When  the  omission,  error,  or  defect  has  been  carried  into  a 
delinquent  list  or  any  publication,  the  list  or  publication  may  be  republished 
as  amended,  or  notice  of  the  correction  may  be  given  in  a  supplementary 
publication. 

3883.  Publication  of  corrected  delinquent  lists,  etc. 

Sec.  3883.  The  publication  must  be  made  in  the  same  manner  as  the  original 
publication,  and  for  not  less  than  one  week. 

3884.  Initial  letters,  abbreviations,  and  figures. 

Sec.  3884.  In  the  assessment  of  land,  advertisement,  and  sale  thereof  for  taxes, 
initial  letters,  abbreviations,  and  figures  may  be  used  to  designate  the  township, 
range,  section,  or  parts  of  section. 

(a)  Original  section-  the  consent  of  the  district  attorney,  be  supplied  orcor- 

Sec.  38S1.  OmissioDR,  errors,  or  defect  in  form  in  any  rected  by  the  assessor  at  any  time  within  one  year  after 

original  or  duplicate  assessment  book,  when  it  can  be  the  original  assessment  was  made. 

ascertained  therefrom  what  was  intended,  may,  with 

473 


38S5-3S94  POLITICAL  CODE. 

3885.  -V"  assessment  illegal  on  account  of  informaliiy,  etc. 

Sec.  3885.  No  assessment  or  act  relating-  to  assessment  or  collection  of  taxes 
is  illegal  on  account  of  informality,  nor  because  the  same  was  not  completed 
within  the  time  required  by  law. 

3886.  Fines,  forfeitures,  penalties,  etc.,  paid  into  county  treasury. 

Sec.  388G.  The  lines,  forfeitures,  and  penalties  incurred  by  a  violation  of  any 
of  the  provisions  of  this  title  must  be  paid  into  the  treasury  for  the  use  of  the 
county  where  the  person  against  whom  the  recovery  is  had  resides. 

3887.  Mortgaged   or  pledged  personal  pjvoperty  deemed  property   of  person   in 

possession. 
Sec.',3887.  Personal  property,  mortgaged  or  pledged,  is  deemed  the  propei-i^ 
of  the  person  in  possession,  and  the  mortgagor  or  lessor  of  real  estate  ia  liable 
for  the  taxes  thereon.  \ 

3888.  Taxes  payable  only  in  gold  or  silver  coin — Exception. 

Sec.  3888.  Taxes  must  be  paid  in  legal  coin  of  the  United  States.  A  tax  levied 
for  a  sj)ecial  purpose  may  be  paid  in  such  funds  as  may  be  directed. 

3889.  Annual  settlements  of  assessors,  district  attorneys,  and  treasurers  u-ith  auditor. 
Sec.  3889.    Every  assessor,   district   attorney,  and  county  treasurer  must, 

annually,  on  the  first  Monday  of  January,  make  a  settlement  with  the  county 
auditor  of  all  transactions  connected  with  the  revenue  for  the  previous  year. 

3890.  '  {ficers  to  perform  only  duties  piertaining  to  their  own  office. 

Sec.  381)0.  The  treasurer,  tax  collector,  assessor,  clerk  of  the  board  of  super- 
visors, and  each  member  of  the  board,  must  separate!}'  perform  the  duties 
required  of  him  in  his  office,  and  must  not,  except  in  the  cases  provided  by 
law,  jjerform  the  duties  required  of  any  other  officer  under  this  title.' 

3891.  When  tlm  title  takes  effect. 

Sec.  3891.  With  relation  to  the  acts  passed  at  the  present  session  of  the  legis- 
lature, the  provisions  of  this  title  must,  after  this  title  takes  effect,  be  construed 
as  though  this  code  had  been  passed  and  approved  on  the  last  day  of  the  pres- 
ent session.  But  the  provisions  of  this  section  do  not  apply  to  any  act  expressly 
amendatory  of  either  of  the  codes,  or  putting  into  efi'ect  any  part  of  either; 
nor  to  an  act  approved  Max'ch  sixteenth,  eighteen  hundred  and  seventj'-two, 
entitled  An  Act  to  put  into  immediate  effect  certain  parts  of  the  Political  and 
Penal  Codes;  nor  to  an  act  approved  March  twenty-second,  eighteen  hundred 
and  seventy-two,  entitled  An  Act  to  put  into  effect  certain  parts  of  the  codes  and 
provide  for  their  publication. 
3392.  Sai-iiig  clause. 

Skc.  38!)2.  All  taxes  assessed  l)efore  this  code  takes  effect  must  be  collected 
under  the  laws  in  force  at  the  time  the  assessment  was  made,  and  in  the  same 
manner  as  if  tliis  code  had  not  been  passed. 
3893.  Compensation  <f  assessor  and  auditor  for  extra  services. 

Sec.  3893.  The  l)oard  of  supervisors  of  each  county  must  make  to  the  assessor 
and  auditor  thereof  a  reasonable  allowance,  not  to  exceed  eight  cents  per  folio, 
for  making  the  statements  required  by  sections  3055  and  3728,  and  for  making 
the  duplicate  assessment  book  mentioned  in  section  3732  of  the  Political  Code. 
8894.   Deputies  fjr  aaseisiiors. 

Sec.  3894.  The  board  of  supervisors  of  each  county  in  this  state  must  allow 
the  asHessor  thereof  such  a  number  of  deputies,  to  be  appointed  by  him  in  addi- 
tion Ui  tlie  number  now  fixed,  or  where  no  deputies  are  now  allowed,  so  many 
dejjuties  as  will,  in  the  judgment  of  the  board,  enable  the  assessor  to  comjjlete 
the  assessment  within  the  time  j^rescribed  by  law. 

[As  to  deputy  assessors  appointed  in  Siskiyou,  Calaveras,  Amador  or  Alpine 

474 


REVENUE.  3894-3899 

count}'  under  authority  of  the  above  section,  see  act  of  March  IG,  1874,  given 
ante,  3704.] 

3895.  Compensation  of  deputies. 

Sec.  3895.  The  board  must  fix  the  compensation  of  the  deputies  so  allowed; 
and  such  compensation  must  be  paid  out  of  the  general  fund  in  the  county 
treasury.  The  compensation  must  not  exceed  five  dollars  per  day  for  each 
deput}'  for  the  time  actually  engaged;  nor  must  any  allowance  be  made  but  for 
work  done  between  the  first  Monday  in  March  and  the  first  Monday  in  July  of 
each  3-ear. 

[The  above  sections,  3894  and  3895,  were  made  apjolicable  to  Humboldt 
county  by  special  act  of  March  28,  187G;  1875-G,  511;  to  take  effect  the  first 
Monday  in  March,  1877.] 

3896.  Slate  board  may  dispense  with  duplicate  book. 

Sec  389G.  The  state  board  of  equalization  may,  by  an  order  entered  upon 
its  minutes,  and  certified  to  the  county  auditor  of  any  county  in  the  state,  dis- 
pense with  the  duj)licate  assessment  book  in  such  county,  in  which  event  the 
original  assessment  book  shall  perform  all  the  offices  of  such  duplicate,  and 
shall  have  like  force  and  effect. 

3897.  Action  to  recover  lyroperty  bought  by  state. 

Sec.  3897.  Whenever  the  state  shall  become  the  purchaser  of  property  sold  for 
taxes,  and  shall  receive  a  grant  of  the  same,  the  state  board  of  equalization  may 
direct  the  district  attorney  of  the  county,  or  the  attorney-general,  to  bring  an 
action  to  recover  possession  of  the  same.  In  case  of  judgment  for  the  recovery 
of  the  same,  or  of  any  part  thereof,  the  board  of  equalization  may  order  the 
property  so  recovered  to  be  sold  b}'  the  county  treasurer,  under  s\ich  regulations 
and  on  such  terms  as  they  may  prescribe,  and  a  grant  from  the  people  of  the 
state,  executed  by  the  coanty  treasurer  to  the  purchaser,  reciting  the  facts 
necessary  to  authorize  such  sale  and  conveyance,  shall  convey  all  the  interest 
of  the  state  in  such  property,  and  be  prima  facie  evidence  of  such  facts.  But 
no  bid  shall  be  received  at  such  sale  for  less  than  twice  the  amount  of  all  the 
taxes  levied  upon  such  property,  and  of  all  interest,  cost,  and  expenses,  up  to 
the  date  of  such  sale.  [Neio  section,  approved  3Iarch  24,  1874;  Amendments 
1873-4,  153;  took  effect  from  jMssage. 

3898.  Proceeds  of  sale,  where  paid. 

Sec.  3898.  In  case  sales  are  made  under  the  provisions  of  the  next  jireceding 
section,  the  proceeds  of  such  sale  shall  be  j^aid  into  the  county  treasury.  The 
treasurer  shall  retain  and  distiibute  to  the  respective  funds  the  portion  belong- 
ing to  the  county,  and  shall  pay  the  balance  to  the  state  treasurer,  who  must 
place  it  in  the  general  fund.  The  attorney  and  counsel  fees,  costs,  and  expenses 
of  the  litigation  for  the  recovery  of  the  property,  and  of  sales  by  the  same, 
when  audited  by  the  board  of  examiners,  must  be  paid  out  of  the  general  fund; 
provided  that  the  allowance  in  any  one  case  shall  not  exceed  the  amount  of  said 
balance  in  such  case.  [New  section,  approved  31arch  24,  1874;  Amendments 
1873-4,  153;  took  effect  from  passage. 

3899.  Collection  of  taxes  by  action,  when. 

Sec.  3899.  The  controller  may,  at  any  tune  after  a  delinquent  list  has  been 
delivered  to  a  collector,  direct  such  collector  not  to  proceed  in  the  collection 
of  any  tax  on  said  list  amounting  to  three  hundred  dollars,  further  than  to  offer 
for  sale  but  once  any  property  upon  which  such  tax  is  a  lien.  Upon  such  di- 
rection, the  collector,  after  offering  the  property  for  sale  once,  and  there  being 
no  purchaser  in  good  faith,  must  make  out  and  deliver  to  the  controller  a  cer- 
tified copy  of  the  entries  upon  the  delinquent  list  relative  to  such  tax;  and  the 
tax  collector,  or  the  controller,  in  case  the  tax  collector  refuses  or  neglects  for 

475 


3899-3900  POLITICAL  CODE. 

fifteen  days  after  being  directed  to  bring  suit  for  collection  by  the  controller, 
may  j^roceed,  by  civil  action  in  the  proper  court,  and  in  the  name  of  the  people 
of  the  State  of  California,  to  collect  such  tax  and  costs.  [Neiv  section,  approved 
March  24.,  1874;  Amendments  1%1Z-^,  153;  took  e feet  from  passage. 

3900.     Complaint  in  action  for  taxes. 

Sec.  3900.  In  such  action,  a  complaint  in  the  following  form  is  sufficient  : 

(Title  of  court.) 

The  People  of  the  State  of  California 
vs. 
(Naming  the  defendant.) 

Plaintiff  avers  that  the  defendant  is  indebted  to  plaintiff  in  the  sum  of  $ , 

state  and  county  taxes  for  the  fiscal  year  18 — ,  with  five  per  cent,  added  for  the 
nou-jjayment  of  such  taxes,  and dollars,  costs  of  collection,  to  date.  Plaint- 
iff demands  judgment  for  said  several  sums,  and  prays  that  an  attachment  may 
issue  in  form  as  prescribed  in  section  five  hundred  and  forty  of  the  Code  of 
Civil  Procedure. 

(Signed  by  the  tax  collector,  or  controller,  or  his  attorney.) 

On  the  filing  of  such  complaint,  the  clerk  must  issue  the  writ  of  attachment 
prayed  for,  and  such  proceedings  shall  be  had  thereunder  as  under  writs  of  at- 
tachment issued  in  civil  actions.  If,  in  such  action,  the  plaintiff  recover  judg- 
ment, there  shall  be  included  in  such  judgment  an  attorney's  fee  of  ten  per 
cent,  on  the  amount  of  the  tax.  In  such  action,  the  certified  copy  mentioned 
in  the  preceding  section,  made  by  the  collector  and  delivered  to  the  controller, 
is  prima  facie  evidence  that  the  person  against  whose  property  the  tax  was 
levied  is  indebted  to  the  people  of  the  State  of  California  in  the  amount  of  such 
tax.  In  case  of  payment  of  any  such  taxes  after  suit  as  above  mentioned  shall 
have  been  commenced,  or  after  the  recovery  of  judgment  therefor,  such  pay- 
ment must  be  made  to  the  county  treasui-er  of  the  county  in  which  such  taxes 
are  due,  whereupon  the  treasurer,  after  distributing  to  the  several  funds  of 
the  county  the  portions  belonging  to  it,  and  paying  to  the  controller  or  his  at- 
torney the  portion  received  as  attorney's  fees,  and  other  costs,  must  pay  the 
remainder  to  the  state  treasurer  at  the  times  and  in  the  manner  px'escribed 
by  law  for  the  jjayment  of  other  state  taxes.  [New  section,  approved  March 
24,  1874;  Amendments  1873-4,  153;  look  effect  from  passage. 

[The  amendatoiy  act  of  March  24,  1874  (Amendments  1873-4,  143),  from 
wliich  tlic  foregoing  amendments  of  Sees.  3630,  3032,  3G51,  3693,  3696,  3730, 
3732,  3773,  3789;  the  repeal  of  3801;  the  added  sections  3811,  3812,  3813,  3814, 
3815,  3816;  amendments  to  3820,  3823,  3829;  the  added  sections  3897,  3898, 
3899,  3900 1_  amendments  to  3737;  added  section  3738;  and  amendments  to  3780, 
3781  and  378.j,  were  taken,  had  a  separate  section,  referring  specially  to  that 
act,  as  follows:] 

Sec.  16.  The  state  board  of  examiners  are  hereby  directed  to  have  five  hun- 
dred copies  of  this  act  printed  in  pamphlet  form,  and  to  transmit  by  express  five 
copies  thereof  to  the  county  clerk  of  each  county,  for  distribution  to  the  revenue 
officers  thereof. 


470 


COUNTIES.  3901-3908 

OF  THE  GOVEENMENT  OF  COUNTIES,  CITIES,  AND  TOWNS. 

Title    I.  Or  Counties 3001 

II.  The  Government  of  Counties 4000 

III.  The  Government  of  Cities 4354 

IV.  Liability  of  Counties  and  Cities  for  Injuries  to  Prop- 

erty BY  Mobs  or  Kiots 4452 

TITLE   L 

Chapter    I.  County    Boundaries  and  County  Seats 3901 

II.  General  Provisions   Relating  to  Counties 39G9 

CHAPTEE   I. 

COUNTY  boundaries  AND  COUNTY  SEATS. 

3901.  County  defined. 

Sec.  3901.  A  county  is  the  largest  political  division  of  the  state  having  cor- 
porate powers. 

3902.  Number  of  counties  in  the  state. 

Sec.  3902.  This  state  is  divided  into  counties,  named,  bounded,  and  consti- 
tuted as  provided  in  this  title. 

3903.  Due  courses  defined. 

Sec.  3903.  In  describing  courses  the  words  "noiih,"  "south,"  "east,"  and 
"west,"  mean  true  courses,  and  refer  to  the  true  meridian  unless  otherwise  de- 
clared. 

3904.  Other  courses  defined. 

Sec  3904.  The  words  "  northerly,"  "  southerly,"  "  easterly,"  and  "westerly," 
mean  due  north,  due  south,  due  east,  and  due  west,  unless  controlled  by  other 
words,  or  by  lines,  monuments,  or  natural  objects. 

3905.  To,  on,  along,  and  with  mountain  ridge. 

Sec  3905.  The  words  "to,"  "on,^'  "along,"  "with,"  or  "by"  a  mountain 
or  ridge,  mean  summit  point,  or  summit  line,  unless  otherwise  expressed. 

3906.  To,  on,  along,  xi-ith,  hy,  uj),  or  down  a  creek,  defined. 

Sec  3906.  The  words"  to,"  "by,"  "along,"  "with,"  "in,"  "up,"  or"down" 
a  creek,  river,  slough,  strait,  or  bay,  mean  the  middle  of  the  main  channel 
thereof,  unless  otherwise  expressed. 

3907.  In,  to,  or  from  ocean  shore. 

Sec  3907.  The  words  "in,"  "to,"  or  "from"  the  ocean  shore  mean  a  point 
three  miles  from  shore  The  words  "along,"  "with,"  "by,"  or  "on"  the 
ocean  shore,  mean  on  a  line  parallel  with  and  three  miles  from  the  shore. 

3908.  Mouth  of  creek  defined. 

Sec  3908.  The  mouth  of  a  creek,  river,  or  slough  which  empties  into  another 
creek,  river,  or  slough,  is  the  point  where  the  middle  of  the  channels  intersect, 

477 


3909-3910  POLITICAL  CODE. 

DEL    XORTE. 

3909.  Del  Norte. 

Shc.  3909.  Situated  iu  the  northwest  corner  of  the  state,  beginning  at  a  point 
in  the  Pacific  ocean  on  the  forty-second  parallel  of  north  latitude,  being 
southern  line  of  Oregon;  thence  southerly,  by  ocean  shore,  to  a  point  one  mile 
south  of  the  mouth  of  the  Khxmath  river,  forming  southwest  corner;  thence 
tastirly.  on  a  line  parallel  with  Klamath  river  to  a  point  one  mile  south  of  the 
muuth  of  Blue  creek;  thence  northeasterly  to  Siskiyou  mountains;  thence 
oasterlv,  following  the  ridge  that  divides  the  waters  of  Clear  creek  from  the 
water.s  of  Dillon's  creek,  to  Klamath  river,  at  a  point  equidistant  from  the 
mouths  of  said  creeks;  thence  across  Klamath  river  and  east  to  the  summit  of 
Salmon  mountains,  forming  the  southeast  corner;  thence  northerly  in  a  direct 
liue  to  the  head  of  the  canon  on  said  river,  about  five  miles  above  the  mouth  of 
Indian  creek;  tlience  north,  crossing  Klamath  river,  to  a  point  on  the  forty- 
second  jiarallel  of  north  latitude,  forming  northeast  corner;  thence  west  to  the 
jtlaoe  of  beginning. 

Coimty  seat — Crescent  city. 

KLAMATH. 

3910.  A7rt»ia//i. 

Sec.  3910.  Beginning  at  southwest  corner  of  Del  Norte,  as  established  in 
section  3909;  thence  southerly,  by  ocean  shore,  to  a  })oint  Avest  from  the  mouth 
of  Mad  river,  forming  southwest  corner;  thence  east  to  a  point  in  Trinity  river, 
which  forms  common  corner  of  Humboldt,  Klamath,  and  Trinity;  thence  noi-th- 
easterly  to  and  along  Scott's  mountain  to  its  point  of  intersection  with  the 
ri<l;_'e  dividing  the  waters  which  flow  into  Scott's,  Shasta,  and  Sacramento 
rivers  on  the  north  from  the  waters  which  flow  into  Salmon  and  Klamath  rivers 
(■n  the  south,  forming  tlie  common  corner  of  Siskiyou,  Klamath,  and  Trinity; 
tlience  northerh*  to  and  along  the  last-mentioned  ridge  to  the  southeast  corner 
(.f  Del  Norte,  as  established  in  section  3909;  thence  westerly  along  the  southern 
line  of  Del  Noi-te  to  the  place  of  beginning. 

County  seat — Orleans  bar. 

An  Act  to  imnex  tlie  territory  comprised  in  the  present  county  of  Klamath  to  the  counties  of 
Humboldt  and  Siskiyou. 

ApiJroveU  March  28,  1874  ;  1873-4,  755. 

Special  election. 

Section  1.  The  Ijoard  of  supervisors  of  Siskiyou  county  must  meet  in  Yreka, 
the  county  seat  of  said  county,  on  or  before  Saturday,  the  second  day  of  May, 
iu  the  yeiu-  eighteen  hundred  and  seventy-four,  and  issue  their  proclamation 
(u-dering  an  election  to  be  held  on  Saturday,  the  thirtieth  day  of  May,  eighteen 
liundred  and  seventy-four,  at  which  the  qualified  electors  of  the  county  may  vote 
on  the  (juestion  of  the  annexation  to  Siskiyou  county  of  that  portion  of  Klamath 
county  Jiereinaftor  specified  in  this  act,  and  on  the  conditions  hereinafter  speci- 
fied. 

Sfcc.  2.  Voters  wlio  desire  the  annexation  to  Siskiyou  county  of  the  portion 
of  Kluuuith  county  herein  described,  must  vote  a  legal  ballot,  with  the  following 
inscrijitioii  j)rinted  or  written  thereon:  "  Annexation,  yes."  And  voters  who 
oj^poHc  the  annexation  to  Siskiyou  county  of  such  portion  of  Klamath  county, 
must  vote  a  legal  ballot,  with  the  inscription  printed  or  written  thereon:  "  An- 
nexation, no." 

Ifoio  cojifliicft;d. 

Sec.  3.  The  laws  wliicli  aj.j.ly  to  and  govern  general  elections,  shall  apply  to 
and  govcHi  the  elections  herein  provided  for,  except  as  is  in  this  section  other- 

478 


COUNTIES.  3910 

wise  directed.  The  county  clerk  shall  procure,  if  practicable,  a  number  of 
copies  of  the  great  register  of  the  county  prepared  and  printed  for  the  general 
election  in  the  year  eighteen  hundred  and  seventy-three,  equal  to  the  number 
of  precincts  in  the  county,  and  shall  cause  one  copy  of  such  great  register  to  be 
delivered  to  the  election  board  of  each  precinct,  and  such  delivery  of  copies  of 
the  great  register  to  the  election  boards  of  the  several  precincts  shall  be  held  to 
be  a  full  compliance  with  the  law  in  reference  to  providing  election  boards  with 
copies  of  the  great  register.  And  the  clerk,  for  the  purpose  of  obtaining  such 
number  of  copies  of  such  great  register  as  by  this  act  is  made  necessary,  is 
authorized  and  directed  to  ojien  the  election  returns  of  the  general  and  judicial 
elections  of  the  year  eighteen  hundred  and  seventy-three,  noAV  on  file  in  his 
office,  and  take  therefrom  such  number  of  copies  of  the  great  register,  consti- 
tutiug  a  part  of  such  election  returns,  as  he  may  require;  and  such  copies  of  the 
great  register  shall  be  valid  for  this  election.  If  enough  copies  of  the  said  great 
register  cannot  in  this  way  nor  in  any  other  manner  be  obtained  to  supply  each 
precinct  with  one  copy  thereof,  the  clerk  must  make,  and  cause  to  be  printed, 
precinct  poll  lists  of  like  character  as  those  required  by  the  registration  act  in 
force  prior  to  the  enactment  of  the  election  law  of  the  Political  Code.  Such  pre- 
cinct poll  lists,  if  made,  must  be  distributed  to  the  election  boards  of  the  several 
precincts,  and  in  the  absence  of  copies  of  the  great  register,  shall  take  the  place 
thereof. 

Returns  and  canvasf^. 

Sec.  4.  The  officers  of  election  must  make  the  returns  of  election  in  the  man- 
ner and  within  the  time  prescribed  for  making  the  returns  of  general  elections, 
and  the  board  of  supervisors,  acting  as  a  board  of  canvassers,  must  canvass  the 
returns  in  the  manner  and  within  the  time  prescribed  for  canvassing  the  returns 
of  general  elections.  If  it  shall  be  found  that  a  majority  of  the  legal  voters 
voting  at  such  election  have  voted  for  annexation,  the  board  of  supervisors 
must,  within  live  days  after  canvassing  the  returns,  make  out  two  several  state- 
ments of  the  result,  one  of  which  they  must  forward  by  mail  to  the  board  of 
supervisors  of  Klamath  county,  and  the  other  to  the  board  of  supervisors  of 
Humboldt  county,  and  thirty  days  after  the  canvassing  of  the  returns  of  the 
election,  if  a  majority  of  the  legal  voters  voting  at  siicli  election  shall  have  voted 
for  annexation,  the  organization  and  government  of  Klamath  county  shall  be 
abandoned,  and  such  portions  of  the  territory  heretofore  constituting  said  county 
shall  be  annexed  to  Humboldt  and  Siskiyou  counties,  respectively,  on  such  con- 
ditions as  are  hereinafter  defined,  and  the  provisions  of  the  subsequent  sections 
of  this  act  shall  be  in  force  from  and  after  that  date. 

Territory  described. 

Sec.  5.  All  that  part  of  the  territory  now  composing  the  county  of  Klamath, 
situate  and  lying  north  and  easterly  of  the  following  line  and  boundary,  to  wit: 
commencing  at  the  point  where  the  present  boundary  of  Klamath  and  Del  Norte 
crosses  the  Klamath  river;  thence  running  easterly  in  a  direct  line  to  where  the 
Salmon  river  enters  the  Klamath  river;  thence  in  a  southerly  direction,  follow- 
ing the  ridge  of  the  mountain  that  divides  the  waters  of  the  Salmon  and  its 
tributaries  from  the  waters  of  Klamath  and  Trinity  rivers,  and  their  tributaries, 
to  the  northern  boundary-line  of  Trinity  county;  shall  be  and  compose  a  part  of 
the  county  of  Siskiyou,  and  shall  be  within  the  jurisdiction  thereof,  and  of  the 
courts  and  officers  of  said  county;  and  all  that  part  of  the  territory  now-  com- 
posing the  county  of  Klamath,  situate  and  lying  south  and  westerly  of  the  above- 
described  boundary  and  line,  shall  be  a  part  of  Humboldt  county,  and  within 
the  jurisdiction  thereof,  and  of  the  courts  and  officers  of  the  county. 

479 


3910  POLITICAL  CODE, 

Indebteihiess. 

Sec.  G.  The  boanl  of  commissioners,  ai-)pointed  iu  accordance  with  the  pro- 
visions of  this  act,  are  hereby  authorized  and  required,  immediately  after  their 
appointment,  to  ascertain  and  apportion  the  then  outstanding  and  bona  fide 
indebtedness  of  the  county  of  Khimath.  A'majority  of  said  commissioners  may 
transact  the  business  and  deteiiniue  the  action  of  said  board.  Said  board  of 
commissionei-s,  after  ascertaining  the  said  indebtedness,  shall  aj^poiiion  the 
same  between  the  counties  of  Humboldt  and  Siskiyou,  in  jiroportion  to  the 
assessed  value  of  property  annexed  to  them  resi^ectively.  Said  board  of  com- 
niissionei-s  shall  ceilif}*  the  amount  of  said  indebtedness  so  apportioned  to  the 
boards  of  supervisors  of  said  counties  of  Siskiyou  and  Humboldt,  respectively, 
and  the  juirt  of  said  indebtedness  apportioned  and  certified  to  the  county  of 
Humltoldt  shall  be  and  remain  a  charge  upon  said  county,  and  the  same  shall 
be  i)aid  l\v  the  board  of  super^'isors  thereof;  and  the  j^art  of  said  indebtedness 
apportioned  and  certified  to  the  county  of  Siskiyou  shall  be  and  remain  a  charge 
upon  said  county,  and  shall  be  paid  by  the  board  of  supervisors  thereof,  and 
said  indebtedness,  so  apportioned,  shall  in  all  things  be  as  valid  and  -binding 
against  and  upon  said  counties  of  Humboldt  and  Siskiyou,  as  if  the  same  had 
Ijeen  originally  authorized  and  incurred  by  said  counties,  or  by  the  pro23er  and 
authorized  officers  thereof. 

Tax  therefor. 

Sec.  7.  The  board  of  sujDervisors  of  the  county  of  Humboldt,  and  the  board 
of  supervisors  of  the  county  of  Siskiyou,  each  is  hereby  authorized  to  levy  a 
tax  upon  the  taxable  property  of  the  county,  not  exceeding  ten  cents  on  each 
one  hundred  dollars  value  jier  annum,  for  the  pifrpose  of  paying  the  indebted- 
ness assumed  under  the  provisions  of  this  act.  The  said  tax  shall  be  assessed, 
levied,  and  collected  at  the  same  time,  in  the  same  manner,  and  ])y  the  same 
officers,  as  other  county  taxes  are  assessed,  levied,  and  collected.  The  funds 
raised  by  such  tax  shall  be  set  apart  and  used  by  said  respective  boards  of 
Bupervieors  only  for  the  payment  of  the  iDriucipal  and  interest  of  said  assumed 
iudebtedness. 

Mecorth. 

Sec.  8.  The  county  clerk  of  Klamath  county  shall,  immediately  after  the 
board  of  supervisors  of  said  county  shall  have  received  notice  from  the  board 
of  supervisors  of  Siskiyou  county,  that  the  majority  of  the  legal  voters,  voting 
on  the  question  of  the  annexation  of  a  portion  of  Klamath  county  to  Siskiyou 
county,  voted  iu  favor  of  such  annexation,  transcribe  into  jn-oper  books  of 
record  all  ^the  records  of  the  new  county  of  Klamath,  relating  to  or  evidencing 
the  titles  to  the  lands  embraced  within  the  territory  annexed  by  this  act  to  the 
county  of  Siskiyou,  for  which  he  shall  receive  as  full  compensation,  twenty 
cents  per  folio;  one  half  of  which  shall  be  paid  by  the  county  of  Siskiyou,  and 
the  otlier  one  lialf  by  the  county  of  Humboldt;  said  amounts  to  be  allowed  and 
paid  by  said  counties  respectively,  as  other  county  charges  are  allowed  and  paid. 

Originah. 

Sec.  9.  After  transcribing  the  records,  as  provided  for  in  the  preceding  section, 
the  said  county  clerk  of  Klamath  county  must  deposit  with  the  county  recorder 
of  Huinboldt  county  the  original  books  of  record  of  the  county  of  Klamath 
relating  U)  the  titles  of  lands  therein.  The  transcript  pro\'ided  for  in  the  pre- 
ceding section  shall  l)e  certilied  to  as  correct  by  the  said  county  clerk,  and  shall 
>>o  received  as  prima  itui'ia  evidence  of  the  contents  thereof. 
Sxiitn. 

Sec.  10.  All  suits  now  pending  in  the  district,  county,  or  probate  courts,  of 

480 


COUNTIES.  3910 

Xlnmatli  county,  shall  be  transferred,  by  the  order  of  the  jndf^e  thereof,  to  the 
district,  county,  and  probate  courts  of  tlie  counties  of  Humboldt  or  Siskiyou. 

Board  of  commissioners. 

Sec,  11.  There  shall  be  a  board  of  commissioners,  to  consist  of  four  persons, 
electors,  two  of  whom  shall  be  ajipointed  by  the  board  of  suptTvisors  of  Hum- 
boldt county,  and  two  by  the  board  of  supervisors  of  Siskiyou,  who  shall  have 
and  execute  the  powers  conferred  by  section  six  of  this  act.  Each  county  shall 
j)ay  its  own  commissioners  such  sums  as  the  board  of  suiDervisors  shall  deem 
just. 

Sale  of  county  property. 

Sec.  12.  The  board  of  supervisoi's  of  Klamath  county  must  sell  at  auction, 
to  the  highest  bidder  or  bidders,  for  cash,  and  within  thirty  days  after  the 
api:»ointment  of  the  commissioners  provided  for  in  section  eleven  of  this  act,  all 
the  county  property  of  said  Klamath  county,  both  real  and  joersonal;  and  the 
board  of  supervisors  of  said  county,  upon  the  sale  of  any  real  estate  by  authority 
of  this  .section,  is  hereby  authorized  and  empowered  to  make,  execute,  and 
deliver,  in  their  official  capacity,  the  necessary  conveyances  for  such  real  estate. 
The  money  arising  from  the  sale  of  said  property  must  be  applied  by  said  board 
of  sui^ervisors  of  said  Klamath  county  to  the  joayment  of  the  indebtedness  of 
the  county. 

Assessment  lists. 

Sec.  13.  The  assessor  and  auditor  of  Klamath  county  must  meet  immediately 
on  the  aimexation  of  the  territory  composing  said  county  to  the  counties  of 
Humboldt  and  Siskiyou,  transmit  the  assessment  lists  containing  the  assess- 
ment of  the  property  of  the  county  for  the  revenue  year  eighteen  hundred  and 
seventy-four-five,  and  all  books  and  papers  in  their  possession  pertaining 
thereto,  to  the  county  auditors  of  the  counties  of  Humboldt  and  Siskiyou;  the 
assessment  lists  containing  the  assessment  of  the  property  in  the  part  of  Klamath 
county  annexed  to  Humboldt  county,  and  the  other  papers  and  books  pertain- 
ing thereto,  to  the  county  auditor  of  said  count}',  and  the  assessment  lists  con- 
taining the  assessment  of  the  property  in  the  part  of  Klamath  covinty  annexed 
to  Siskiyou  county,  and  the  other  papers  and  books  pertaining  thereto,  to  the 
county  auditor  of  said  county.  Said  assessor  and  auditor  must  certify  under 
oath  to  the  genuineness  of  all  paj)ers  transmitted  under  the  provisions  of  this 
section;  and  the  assessment  of  the  property  of  Klamath  county  for  the  revenue 
year  eighteen  hundred  and  seventy-four-five,  made  by  the  assessor  of  said 
county  and  transmitted  to  the  auditors  of  Humboldt  and  Siskiyou  counties 
respectively,  as  provided  in  this  section,  shall  be  as  valid  as  if  made  by  the 
assessors  of  said  counties  respectively. 

Compensation. 

Sec.  14.  The  board  of  supervisors  of  Siskiyou  county  must  allow  the  county 
clerk  of  said  county,  for  the  services  he  may  perform  in  connection  with  the 
election  herein  provided  for,  such  compensation  as  they  shall  deem  proper  and 
just,  and  the  sums  they  may  allow  shall  be  in  addition  to  the  fees  and  compen- 
sations the  clerk  is  allowed  by  law  to  approj^riate  to  his  own  use. 

Salary. 

'  "  Sec  15.  In  the  event  of  the  annexation  of  any  portion  of  the  teiiitoiy  of 
the  new  county  of  Klamath  to  the  county  of  Humboldt,  as  provided  by  this 
act,  the  assessor  of  the  county  of  Humboldt  shall,  in  addition  to  the  salary  and 
fees  now  allowed  by  law,  receive  the  sum  of  six  hundred  dollars  per  annum, 
after  the  first  Monday  in  March,  a.  d.  eighteen  hundred  and  seventy-five. 
Sec.  16.  This  act  shall  take  effect  and  be  in  force  from  and  after  its  passage. 
31  481 


3910  POLITICAL  CODE. 

An  Act  amendatory  of  ami  supplementary  to  the  foregoing  net  of  March  28,  1874. 
Approved  March  31,  1876;  1875-6,  603. 

Supervisors  io  appoint  commissioners;  same,  jvhen  to  meet. 

Section  1.  The  board  of  supervisors  of  the  counties  of  Humbohlt  and  Siski- 
you are  directed,  at  their  first  regular  meetings  of  said  board  after  the  passage 
of  this  act,  to  appoint  tAvo  commissioners  each,  as  provided  in  section  eleven  of 
the  act  to  whicli  tliis  act  is  amendatory  and  supplementary,  whose  duty  it  shall 
be  to  meet  at  Orleans  bar  on  the  fifth  day  of  June,  a.  d.  eighteen  hundred  and 
seveutv-six,  and  do  and  perform  all  duties  required  of  them  by  the  provisions 
of  thi.s  act  and  the  act  to  which  this  is  amendatory  and  supplementary,  not 
inconsistent  with  the  provisions  of  this  act;  provided,  that  if  the  commissioners 
of  either  of  said  counties  fail  to  meet  as  herein  provided,  and  the  commissioners 
from  the  other  county  shall  be  in  attendance  at  said  time  and  place,  then  the 
county  being  in  default  shall  pay  to  the  county  not  so  in  default  all  expenses 
incurred  by  reason  thereof. 
When  failure  io  agree. 

Skc.  2.  If  said  commissioners  fail  to  agree,  they  shall  at  once  choose  some 
disinterested  person,  who  shall  cast  the  deciding  vote  upon  such  matters  as  to 
which  they  shall  so  fail  to  agree;  provided,  that  if  said  commissioners  fail  to 
agree  as  to  the  person  herein  authorized  to  be  chosen,  they  shall  certify  the 
fact  to  the  district  judge  of  the  eighth  judicial  district,  who  shall  appoint 
another  commissioner,  who  shall  cast  the  deciding  vote  as  aforesaid;  and  pro- 
\-ided  that  if  said  commissioners  shall,  from  any  cause,  fail  to  meet  as  herein 
provided,  they  shall  then  meet  on  the  succeeding  second  Monday  of  August, 
A.  D.  eighteen  hundred  and  seventy-six,  unless  a  shorter  [time]  be  agreed  upon 
by  the  boards  of  said  counties. 
Commissioners  to  sell  county  property. 

Sec.  3.  The  commissioners  must  sell  at  auction,  to  the  highest  bidder  or 
bidders,  for  cash,  all  of  the  county  projDerty  of  the  said  Klamath  county,  both 
personal  and  real,  as  soon  after  their  meeting  and  organizing  as  they  shall  deem 
expedient,  and  they  are  hereby  authorized  and  empowered,  in  their  official 
cajiacity,  to  execute  deeds  and  bills  of  sale  for  all  property  so  sold,  which  shiJl 
in  all  ret>pects  be  a  valid  conveyance  thereof. 
I'rcnsurfr  of  Ktarna/li  to  pay  over  mon(.n/s. 

Sec.  4.  P.  W.  "Wasmuth,  the  treasurer  of  Klamath  county,  shall,  upon  the 
meeting  and  organizing  of  the  commission  herein  provided,  make  an  exhibit  of 
the  amount  of  all  moneys  and  property  in  his  custody  or  under  his  control  as 
such  treasurer,  to  said  commissioners,  also  of  all  outstanding  and  bona  fide 
indebttdness  of  said  Klamath  county.  Such  exhibit  shall  be  by  said  P.  "W. 
"NVahmutli  fullj-  explained  to  the  commissioners,  and  they  may  examine  tliesaid 
P.  W.  AVasmuth,  or  any  otlier  person  or  persons,  on  oath,  or  the  books  or 
papers,  touching  any  or  all  of  said  matters.  Said  commissioners  shall  there- 
upon proceed  to  ascertain  the  amount  of  moneys  belonging  to  Klamath  county 
which  is  in  tlje  jiosscHsion  or  under  the  control  of  said  P.  W.  Wasmulh.  The 
commiKi^ioners  shall  allow  to  P.  "\V.  Wasmuth  two  per  cent,  on  all  moneys  he 
niaj-  have  in  his  possession  belonging  to  said  Klamath  county,  as  full  compen- 
Bation  for  all  services  jierformed  by  him  as  treasurer  of  said  county.  P.  W. 
"NVasmuth  is  liereby  ordered  to  jiay  over  to  said  commissioners,  upon  their 
receipt,  all  of  said  moneys,  less  the  amount  allowed  hj  the  said  commissioners 
a«  herein  provided. 

A}qx)rtioiane.nl  of  indehiedneas. 

Sec.  o.  Said  commissioners  shall  ascertain  and  apportion  the  assets  of  said 
Klamath  county  in  the  same  manner  as  provided  for  the  apportionment  of  the 

482 


COUNTIES.  3910-3011 

indebtedness  of  said  conntj^  in  section  six  of  the  act  to  wlilcli  this  act  is  amen- 
datory and  supi^lementary.  The  commissioners  shall  pay  over  to  the  county 
treasurer  of  their  respective  counties  the  sums  so  apportioned,  Avhich  shall  be 
set  apart  by  the  said  counties  for  the  payment  of  the  principal  and  interest  of 
said  assumed  indebtedness  of  Klamath  county. 
Transfer  of  actions,  records,  etc.,  to  Humboldt  rouvty. 

Sec.  6.  All  suits  and  proceedings,  of  whatever  kind  or  nature,  now  or  at  any 
time  pending  in  the  district,  county  or  probate  courts  of  Klamath  county,  and 
all  suits,  judgments,  orders,  and  proceedings,  of  whatever  kind  or  nature, 
heretofore  at  any  time  had  or  determined  in  or  by  any  of  said  courts,  which 
have  not  been  already  transferred  to  some  other  county,  are  hereby  transferred 
to  the  appropriate  courts  of  Humboldt  county,  which  last-named  courts  shall 
have  the  same  and  as  ample  jurisdiction  thereof  as  if  such  suits  and  proceedings 
had  been  oi'iginally  commenced  and  such  judgments  and  orders  had  been 
originally  made  in  said  courts;  and  all  of  the  records  of  said  courts  not  hereto- 
fore transferred  to  some  other  court,  shall  be  delivered  to  the  county  clerk  of 
Humboldt  county  by  the  present  custodians  thereof;  and  the  clerk  of  Humboldt 
county  shall  have  the  same  power  and  perform  the  same  duties  touching  all 
suits,  judgments,  orders,  and  jjroeeedings  originally  had  in  said  courts  of 
Humboldt  count3\ 
AllovMnce  to  assessor  of  Klamath. 

Sec.  7.  The  board  of  supervisors  of  Humboldt  county  and  the  board  of  super- 
visors of  Siskiyou  county  shall  allow  J.  Nally,  the  assessor  of  Klamath  county, 
such  sums  as  he  shall  be  entitled  to  for  services  performed  in  assessing  the 
territory  of  Klamath  county,  during  the  years  a.  d.  eigliteen  hundred  and 
seventy-four  and  five,  and  the  commissioners  herein  provided  for  shall  certify 
to  their  respective  boards  of  supervisors  such  amount  as,  in  their  judgment, 
they  shall  find  the  said  assessor  entitled  to;  provided,  that  the  suras  so  allowed 
by  the  said  board  of  supervisors  shall  not  exceed  in  the  aggregate  the  salar}' 
allowed  by  law  to  said  assessors  for  any  one  year. 

Sec.  8.   The  said  commissioners  are  hereby  authorized  and  fully  empowered 
to  do  all  acts  necessary  to  carry  into  effect  the  provisions  of  this  act,  and  the 
act  to  which  this  is  supplementary  and  amendatory. 
Supervisors  of  Humboldt  and  Siskiyou  to  levy  tax. 

Sec.  9.  Section  seven  of  the  act  to  which  this  is  amendatory  and  supple- 
mentary is  amended  to  read  as  follows:  Section  7.  The  board  of  supervisors  of 
Humboldt,  and  the  board  of  supervisors  of  Siskiyou,  each  is  hereby  authorized 
to  levy  a  tax  upon  the  taxable  property  of  the  county,  not  exceeding  ten  cents 
nor  less  than  five  cents  on  each  one  hundred  dollars  value  per  annum,  for  the 
purpose  of  paying  the  indebtedness  assumed  under  this  act.  The  said  tax 
shall  be  assessed,  levied,  and  collected  at  the  same  time,  in  the  same  manner, 
and  by  the  same  officers  as  other  county  taxes  are  assessed,  levied,  and  collected. 
The  funds  raised  by  such  tax  shall  be  set  apart  and  used  by  said  respective 
boards  of  supervisors  only  for  the  payment  of  the  principal  and  interest  of  said 
assumed  indebtedness. 

Sec  10.  All  provisions  in  the  act  to  which  this  is  amendatory  and  supple- 
mentary, in  conflict  with  the  provisions  of  this  act,  are  hereby  repealed,  so  far 
as  they  are  in  conflict. 

Sec  11.  This  act  shall  take  effect  from  and  after  its  passage. 

SHASTA. 

3911.  Shasta. 

Sec.  3911.  Beginning  at  the  northern  line  of  Tehama,  at  the  head  of  Bloody 
island,  in  Sacramento  river;  thence  to  and  down  the  eastern    '-hannel  to  the 

483 


3911-3912  POLITICAL  CODE. 

mouth  of  Battle  creek;  thence  easterly,  up  Battle  creek,  hy  the  main  channel, 
to  the  mouth  of  the  Middle  Fork,  known  as  Digger  creek;  thence  up  Digger 
creek  to  its  head;  thence  east  to  a  point  south  of  Black  Butte  mountain,  form- 
iucr  southeast  corner;  thence  north,  on  western  line  of  Lassen,  to  a  rock  mound, 
forming  noi-theast  corner,  on  southern  line  of  Siskiyou;  thence  west,  on  said 
southern  line,  to  Castle  rock,  forming  northwest  corner;  thence  southerly  along 
Trinity  mountain  to  the  head  of  Bee  Gum  creek,  forming  southwest  corner; 
thence  easterly  down  Bee  Gum,  Middle  Fork,  and  Cottonwood  creeks  to  the 
western  channel  of  Sacramento  river;  thence,  by  direct  line,  to  the  point  of 
beginning. 

County  seat — Shasta  city. 

LASSEN. 

3912.  Lassen. 

Sec.  3912.  Beginning  at  southwest  corner,  on  the  northern  line  of  Sierra,  as 
e.sitablished  in  section  3921,  at  a  point  on  the  summit  of  the  ridge  which  crosses 
said  line,  and  which  divides  Long  valley  from  Sierra  valley;  thence  northwes- 
terlv,  following  said  ridge,  to  a  point  due  south  from  the  town  of  Susanville; 
thence  westerly,  along  the  ridge  separating  the  waters  which  flow  into  the  east 
l)ranch  of  the  north  fork  of  Feather  river,  ranning  through  Indian  valley,  from 
those  which  flow  into  the  north  fork  of  Feather  river,  running  through  Moun- 
tain meadows,  to  a  point  on  said  ridge  south  from  the  point  where  the  old  and 
present  traveled  road  from  the  Big  meadows,  via  Hamilton's  ranch,  first  crosses 
the  said  north  fork;  thence  north,  to  a  point  east  of  the  southeast  corner  of  Shasta; 
thence  west,  along  said  extension  line,  to  a  point  due  south  of  Black  Butte 
mountain,  being  southeast  corner  of  Shasta;  thence  north,  to  a  point  on  south- 
ern line  of  Siskiyou  marked  b}'  a  rock  mound,  being  northwest  corner  of  Lassen 
and  northeast  corner  of  Shasta;  thence  east,  along  said  line,  to  the  eastern  bound- 
ary of  the  state;  thence  south,  along  said  state  line,  to  the  northeast  corner  of 
Sierra,  as  established  in  section  3921;  thence  west,  along  the  line  of  Sierra,  to 
the  jilace  of  beginning. 

County  seat — Susanville. 

All  .\ct  providing  for  the  survey  of  tbe  line  forming  a  portion  of  the  southern  boundary  of 
Siskiyou  county  and  the  northern  boundary  of  Lassen  coirnty. 

Approved  April  1,  1872;  1872-2,  88G. 

S iiryt^jor-f/i'jiei'al  lo  survey  and  locate  line. 

Section  1.  The  surveyor-general  is  hereby  directed  to  survey  and  locate  that 
portion  of  the  southern  boundary-line  of  the  county  of  Siskiyou,  commencing 
at  a  point  known  as  the  Devil's  Castle,  near  and  on  the  opposite  side  from  Soda 
Springs,  on  the  upper  Sacramento  river,  and  running  from  said  point  due  east, 
to  the  eastern  boundary  of  the  State  of  California,  and  shall  plainly  de.signate 
said  line  by  suitable  monuments,  and  describe  the  same  upon  the  maps  of  state, 
in  accordance  with  the  several  acts  of  the  legislature  of  the  State  of  California, 
defining  the  northern  Ijoundary  of  the  county  of  Lassen  and  that  portion  of  the 
Bouthern  bound:iry  of  tlie  county  of  Siskiyou  above  described. 
Erj)enni'H. 

Sec.  2.  The  nc-ccssiiiy  expenses  of  such  survey  and  location  of  said  line  shall 
be  paid  by  the  State  ui  California,  out  of  the  general  fund  thereof,  to  the  sur- 
veyor-general, upon  his  liliiig  in  the  office  of  the  state  controller,  his  certificate 
that  such  survey  is  completed  according  to  law,  together  with  his  claim,  setting 
forth  tbe  items  of  expense  of  such  survey;  provided,  that  the  total  expense  of 
audi  survey  shall  not  exceed  the  sum  of  twenty-five  hundred  dollars;  and  the 
sum  of  twenty-five  hundred  dollars  is  hereby  appropriated  for  the  payment  of 
the  expenses  of  such  survey. 

Sec.  3.  Tliis  act  sliall  take  effect  from  and  after  its  passage. 

48-1 


COUNTIES.  3913 

SISKIYOU. 

3913.  SisJciyou. 

Sec.  3913.  Begiuiiiug-  at  southwest  corner,  being  common  corner  of  Trinity, 
Klamath,  and  Siskiyou,  as  established  in  section  3910;  thence  easterly,  on 
northern  line  of  Trinity,  to  northwest  corner  of  Shasta,  as  established  in  section 
3911;  thence  east,  on  northern  line  of  Shasta  and  Lassen,  to  western  line  of  the 
State  of  Nevada;  thence  north,  on  the  line  of  said  state,  to  the  southern  line  of 
the  State  of  Oregon;  thence  west,  on  Oregon  line,  to  the  northeast  corner  of 
Del  Norte,  as  established  in  section  3909;  thence  southeasterly,  on  the  eastern 
lines  of  Del  Norte  and  Klamath,  as  established  in  sections  3909  and  3910,  to  the 
place  of  beginning. 

County  seat — Yreka. 

[See  also  act  of  March  28,  1874,  as  to  partitioning  of  Klamath  county, 
between  Siskiyou  and  Humboldt  counties,  ante,  3910. 

The  county  of  Siskiyou  was  divided,  and  the  new  county  of  Modoc  created 
out  of  the  eastern  portion,  by  the  following  act.] 

MODOC. 

An  Act  to  create  tlie  county  of  Modoc,  to  establish  tlie  boundaries  thereof,  and  to  jjrovide  for 
its  organization. 

Approved,  February  17,  1874  ;  1873-t,  124. 

Modoc  county. 

Section  1.  There  shall  be  formed  out  of  the  eastern  part  of  Siskiyou  count}-, 
a  new  county,  to  be  called  Modoc. 

Boimda7'ies. 

Sec.  2.  The  boundaries  of  Modoc  county  shall  be  as  follows:  Commencing  at 
the  northeast  corner  of  the  State  of  California;  thence  west,  along  the  northern 
boundary-line  of  said  state,  to  the  range  line  between  Ranges  Nos.  Four  (4)  and 
Five  (5)  east,  of  Mount  Diablo  base  and  meridian;  thence  due  south,  on  said 
range  line,  to  the  southern  boundary -line  of  Siskiyou  county;  thence  east  along 
said  southern  boundary-line,  to  the  state  line;  and  thence  north  to  the  jjlace  of 
beginning. 

County  seat. 

Sec.  3.  The  seat  of  justice  shall  be  at  the  town  of  Dorrisbridge,  until  other- 
wise provided  by  law. 

Appointment  of  county  judge — Salary — Terms  of  county  and  probate  courts. 

Sec.  4.  The  governor  of  this  state  shall,  when  this  act  takes  efl'ect,  apj^oint 
some  suitable  j^erson,  resident  of  Modoc  county,  to  act  as  county  judge,  who 
shall  reside  at  the  county  seat,  and  whose  term  of  office  shall  continue  until  the 
fii'st  day  of  January,  a.  d.  eighteen  hundred  and  seventy-six,  and  until  his  suc- 
cessor is  elected  and  qualified.  The  county  judge  shall  receive  a  salary  of  one 
thousand  dollars  per  annum,  to  be  paid  quarterly,  and  shall  hold  the  courts  re- 
quired by  law  to  be  held  by  county  judges.  There  shall  be  three  regular  terms 
of  the  county  court  held  in  each  year,  said  terms  to  commence  on  the  tirst 
Monday  in  February,  June,  and  October;  i)rovided,  however,  the  county  judge 
shall  call  and  hold  special  terms  of  the  probate  court  whenever  public  necessity 
may  require.  Said  county  judge  shall  discharge  all  the  duties  required  by  law 
of  county  judges  in  this  state. 

Election  of  officers — Terms  of  office. 

Sec.  5.  An  election  shall  be  held  in  said  Modoc  county  within  sixty  days  from 
the  time  of  the  first  meeting  of  the  commissioners  in  this  act  provided  for.  At 
said  election  there  shall  be  chosen  by  the  qualified  voters  of  said  county  one  dis- 
trict attorney,  one  county  clerk,  who  shall  be  ex  officio  auditor,  recorder,  and 
clerk  of  the  board  of  supervisors,  board  of  equahzation,  and  board  of  canvas- 

485 


3913  POLITICAL  CODE. 

sei-s;  one  county  superintendent  of  public  schools,  one  sheriff,  who  shall  be  ex 
officio  county  tax  collector,  one  county  assessor,  one  county  treasurer,  one  county 
surveyor,  one  county  coroner,  who  shall  be  ex  officio  public  administrator.  Said 
county  officei-s  shall  hold  their  respective  offices  until  the  first  Monday  of  March, 
.K.  D.  eighteen  hundred  and  seventy-six,  and  until  their  successors  are  elected  and 
quahfied.  At  said  election  there  shall  be  chosen  one  supervisor  for  each  super- 
visor district  in  said  county,  who  shall  hold  their  offices  as  follows:  District 
number  one,  until  the  first  Monday  of  November,  a.  d.  eighteen  hundred  and 
seventy-four;  District  number  two,  until  the  first  Monday  of  November,  a.  d. 
ei<,diteen  hundred  and  seventy-five;  and  District  Number  Three,  until  the  first 
Monday  of  November,  a.  d.  eighteen  hundred  and  seventy-six.  At  said  election 
there  shall  be  chosen  two  constables  and  two  justices  of  the  peace  for  each  town- 
ship; provided,  however,  that  all  constables  and  justices  and  road  overseers 
elected  at  tiie  general  and  judicial  elections  held  in  the  year  a.  d.  eighteen  hun- 
dred and  seventy-three,  residents  of  Modoc  county,  shall  hold  their  offices  for 
the  time  provided  by  law,  upon  having  duly  qualified  as  township  officers  of 
Modoc  county  for  the  respective  townships  in 'which  they  reside,  as  said  town- 
ships are  organized  by  the  action  of  the  board  of  commissioners,  provided  for 
by  this  act.  At  said  election  the  qualified  electors  of  said  county  shall  vote  for 
a  place  for  county  seat,  and, a  majority  of  all  the  votes  cast  shall  be  necessaiy  to 
locate  the  same;  and  until  the  county  seat  is  located,  by  a  vote  of  the  qualified 
electors,  the  board  of  supervisors  of  said  Modoc  county  are  hereby  prohibited 
from  incurring  any  indebtedness  for  the  erection  of  county  buildings  in  said 
county.  For  the  purposes  of  this  election  the  county  clerk  of  Siskiyou  county 
shall  furnish  each  election  precinct  established  by  the  board  of  commissioners 
of  Modoc  county  with  two  (2)  copies  of  the  great  register  of  Siskiyou  county, 
printed  for  the  general  election  held  in  said  county  in  the  year  eighteen  hundred 
and  seventy-three;  and,  if  necessary,  said  county  clerk  is  hereby  authorized  to 
take  said  copies  from  the  election  returns  now  on  file  in  his  office. 

Jiuard  (if  comm  iasioners. 

Sec.  G.  The  governor  shall,  when  this  act  takes  effect,  appoint  five  persons, 
residents  of  !Modoc  county,  who  shall  be  and  constitute  a  board  of  commis- 
sioners to  i^erfect  the  organization  of  said  county,  a  majority  of  whom  shall 
constitute  a  quorum.  Said  commissioners  shall  meet  at  the  county  seat  within 
twenty  days  after  their  appointment,  and,  after  being  duly  sworn  to  faithfully 
discharge  their  duties,  as  i:»rescril)ed  in  this  act,  shall  organize,  by  electing  from 
their  number  a  president  and  clerk.  They  shall  then  divide  said  county  into 
townships,  define  their  boundaries,  and  designate  the  name  of  each.  They 
Khali  also  divide  said  county  by  townships  into  three  supervisor  districts,  and 
number  the  same.  They  shall  also  establish  election  precincts,  and  appoint 
one  inspector  and  two  judges  of  electit)n  for  each  precinct  in  said  couuty.  They 
shall  give  thirty  days'  notice,  by  proclamation  in  some  newspaper  published  in 
Modoc  county,  or  if  there  be  no  newspaper  published  in  Modoc  county,  then 
Riiid  publication  to  be  made  in  80)ue  newspaper  published  in  the  county  of 
Siskiyou,  of  tlie  officei-s  to  be  elected,  the  precincts  established,  with  their 
unmi'H  and  boundaries,  the  officers  of  election  of  each  precinct,  and  the 
nuinljer  and  boundaries  of  each  supervisor  district.  Said  commissioners  shall, 
on  tlie  second  Monday  after  said  election,  meet  at  the  county  seat  as  a  board  of 
canvassers,  and  ])roceed  to  canvass  the  election  returns.  Said  commissioners, 
tlieir  i)r(;sident  and  clerk,  are  hereby  authoiized  and  required  to  discharge  the 
same  duties  as  are  now  recjuired  by  law  of  boards  of  supervisors  and  county 
clerks  in  the  counties  in  this  state,  so  far  as  the  same  apply  to  holding  elec- 
tions, canvassing  election  returns,  and  issuing  certificates  of  election.     They 

486 


COUNTIES.  3913 

shall  keep  a  full  record  of  all  their  proceedings,  and  file  the  same,  with  the  orig- 
inal election  returns,  in  the  county  clerk's  office,  as  soon  as  he  shall  have  been 
qualified,   and  thereupon  the  power  and  duties  of  said  commissioners  shall 
cease. 
Organization. 

Sec.  7.  It  shall  be  the  duty  of  the  board  of  supervisors  of  Modoc  county, 
whose  election  is  provided  for  by  this  act,  to  meet  at  the  county  seat  on  the 
first  Monday  of  the  month  subsequent  to  their  election,  take  the  oath  of  office, 
and  file  the  official  bond  required  by  the  Political  Code.  The  member  of 
district  number  one,  shall  be  president  of  the  board.  They  shall  tlien  allow 
such  per  diem  and  mileage  to  the  commissioners  and  officers  of  election  as  they 
may  think  proper  and  just,,  and  a  warrant  shall  be  drawn  by  the  auditor  on 
the  county  general  fund  in  favor  of  each  person  to  whom  an  allowance  shall 
have  been  made,  for  the  amount  of  such  allowance.  Said  board  shall  ajipoint 
two  citizens,  and  freeholders  of  Modoc  county,  to  act  as  joint  commissioners 
with  an  equal  number  to  be  appointed  by  the  board  of  supervisors  of  Siskiyou 
county,  to  ascertain  and  declare  the  amount  of  the  indebtedness  of  Modoc 
county  to  Siskiyou  county.  Immediately  on  their  appointment,  such  commis- 
sioners shall  notify  the  board  of  supervisors  of  Siskiyou  county  of  that  fact. 
Upon  the  receipt  of  such  infoi-mation  said  boaixl  shall  proceed,  without  unnec- 
essary delay,  to  appoint  a  like  number  of  commissioners,  citizens  and  freehold- 
ers of  Siskiyou  county,  who  shall,  at  a  time  and  j)lace  to  be  agreed  ujion,  meet 
with  the  commissioners  of  Modoc  count}'.  The  commissioners  of  the  resi)ective 
counties,  after  having  severally  taken  an  oath  to  discharge  honestly  and  to  the 
best  of  their  ability  their  duties  as  commissioners,  shall  organize  as  a  joint 
commission,  by  the  selection  of  one  of  their  number  as  president,  and  one  as 
secretary.  As  soon  as  organized^  the  joint  commission  shall  proceed,  in  the 
following  manner,  to  determine  the  amount  of  the  indebtedness  of  Modoc  county 
to  Siskij'ou  county,  to  wit:  they  shall  ascertain  the  indebtedness  of  Siskiyou 
county  at  the  time  this  act  takes  effect;  they  shall  then  ascertain  the  total  value 
of  the  assets  belonging  to  said  county;  they  shall  then  ascertain  the  assessed 
value,  under  the  assessments  of  eighteen  hundred  and  seventy-three,  of  the 
property  in  the  territory  hereby  set  apart  to  form  Modoc  county;  then,  after 
deducting  the  assets  from  the  indebtedness,  so  as  to  ascertain  the  actual  indebt- 
edness, the  proportion  due  from  Modoc  county  to  Siskiyou  county  shall  be 
ascertained  as  follows:  as  the  total  assessed  value  of  jiroperty  in  the  territory 
taken  from  Siskiyou  county  to  form  Modoc  county  is  to  the  total  assessed 
value  of  Siski^'ou  county  before  the  formation  of  Modoc  county,  so  shall  be  the 
proportion  of  the  actual  indebtedness  of  Modoc  county  to  Siskiyou  county,  and 
said  commissioners  shall  certify  to  their  respective  boards  of  supervisors  such 
amount.  The  board  of  supervisors  of  Modoc  county  shall  then  issue  the  bonds 
of  said  county,  payable  in  ten  years  from  the  organization  of  said  county,  and 
bearing  interest  at  the  rate  of  ten  per  cent,  per  annum,  payable  annually,  j^rin- 
cipal  and  interest  of  said  bonds  to  be  paid  in  United  States  gold  coin  to  said 
Siski^^ou  county,  for  such  sum  as  the  commissioners  certify  to  be  due,  said  bonds 
to  be  of  the  denomination  of  five  hundred  dollars.  Said  board  of  supervisors 
shall  procure  and  provide  a  suitable  place  or  places,  to  be  used  as  a  court-house 
and  jail  until  the  location  of  the  county  seat  is  determined  and  a  suitable  build- 
ing erected.  They  shall,  when  they  levy  state  and  county  taxes,  levy  a  tax  of 
twenty  cents  upon  each  one  hundred  dollars  of  taxable  property  in  said  county, 
which  shall  be  collected  as  other  state  and  county  taxes  are  collected,  and  shall 
be  set  apart  as  an  interest  and  sinking  fund  to  liquidate  the  debt  due  from 
Modoc  county  to  the  county  of  Siskiyou.  Said  interest  and  sinking  fund  shall 
be  apiDropriated,  first,  to  pay  the  interest  due  on  the  bonds,  according  to  the 

487 


3913  POLITICAL  CODE. 

tenor  thereof,  given  bv  Modoc  couuty  to  Siskiyou  county;  and,  second,  when- 
ever there  shall  be  a  sufficient  sum  remaining-,  after  paying  interest  as  aforesaid, 
to  pay  off  one  of  said  bonds,  the  treasurer  of  Modoc  county  shall  present  the 
same  to  the  treasurer  of  Siskiyou  county,  at  Yreka,  who,  upon  receipt  thereof, 
shall  sun-ender  one  of  said  bonds,  which  shall  be  canceled  by  the  treasurer  of 
Modoc  county,  and  hied  in  the  clerk's  office.  Said  board  of  supervisors  shall 
exercise  such  other  powers  and  duties  as  are  conferred  by  the  general  laws  on 
boards  of  supervisors  in  the  counties  of  this  state. 

Actions  reinored. 

Sec.  8.  All  civil  actions,  or  jn-oceedings  in  the  nature  of  actions,  whether 
original  or  upon  ajipeal,  civil  or  criminal,  which  shall  be  pending  in  the  district 
court,  county  court,  or  j^robate  court,  in  the  county  of  Siskiyou,  at  the  time  of 
the  organization  of  !Modoc  county,  in  which  the  defendants  are  residents  of 
Modoc  county,  shall  be  removed  for  trial  and  final  determination  to  the  proper, 
courts  of  Modoc  couuty,  on  motion  of  any  party  interested;  provided,  that 
actions  commenced  for  the  collection  of  taxes  and  licenses,  shall  not  be  re- 
moved from  the  courts  of  Siskiyou  county;  provided,  further,  that  in  all  criminal 
cases,  where  the  ofTenses  Avere  committed  within  the  limits  of  Modoc  county, 
upon  the  apj^lication  of  the  district  attorney  of  Modoc  county,  said  causes  shall 
be  removed  to  Modoc  county. 
Transcript  of  records. 

Sec.  9.  All  residents  or  proj^erty  holders  of  Modoc  county,  upon  application 
to  the  county  recorder  of  Siskiyou  county,  and  upon  the  payment  of  the  fees 
required  by  law,  shall  be  entitled  to  receive  a  transcri^^t  of  the  record,  diily 
attested,  of  any  projoerty  situated  in  the  county  of  Modoc  and  recorded  in  his 
office;  and  upon  presentation  of  said  transcript  to  the  county  recorder  of  Modoc 
county,  and  upon  the  payment  of  the  fees  required  b}'  law,  said  recorder  shall 
record  the  same,  and  said  record  shall  have  the  full  force  and  effect  of  the 
original  record;  provided,  however,  that  the  board  of  supervisors  of  Modoc 
county  shall,  within  two  years,  procure  a  suitable  set  of  books,  and  make  such 
arrangements  as  they  may  agree  upon  with  the  county  recorder  of  Siskiyou 
county,  for  the  transcribing  therein  all  necessary  records,  j^roperly  certified; 
said  records  to  have  the  same  effect  and  force  as  the  original  records. 

Senatorial  and  judicial  districts. 

Sec  10.  Modoc  county  shall  be  attached  to  and  form  a  part  of  the  twenty- 
eighth  senatorial  district,  and,  for  judicial  purposes,  shall  be  attached  to  and 
form  a  part  of  the  ninth  judicial  district.  The  terms  of  the  district  court  shnll 
bo  held  in  and  for  the  county  of  Modoc  on  the  second  Monday  of  July  and  the 
third  ilouday  of  October  of  each  year. 

Election  o/ officers. 

Sec.  11.  The  county  officers  of  Modoc  county  shall,  except  as  otherwise  pro- 
vided by  thi8  act,  be  elected  at  the  same  time  as  the  county  officers  in  other 
counties  of  this  state,  and  shall  hold  tlieir  offices  for  the  term  fixed  by  law. 
They  shall  give  bonds,  for  the  faitliful  discharge  of  their  duties,  in  such  manner 
and  sums  as  required  by  the  Political  Code.  The  supex-visors  of  Modoc  county 
shall  j.rovide  for  the  election  of  their  successors,  whose  term  of  office  shall  be 
three  years. 

iJufies. 

Sec.  12.  All  officers  provided  for  by  this  act,  shall  perform  duties  as  required 
by  the  general  laws  of  the  state,  unless  otherwise  provided  by  this  act. 
Comiicusation  of  hoard. 

Sec.  13.  The supenisors  of  :\lodoc  county  shall  receive  for  their  services  four 

488 


COUNTIES.  3913-3914 

dollars  per  day,  and  tweuty-five  cents  per  mile  for  coming  to  the  county  seat; 
2)rovided,  tliat  but  one  mileage  shall  Le  charged  for  each  term  of  the  board; 
and,  j^rovided,  that  for  the  year  eighteen  hundred  and  seventy-four,  and  any 
year  thereafter,  the  per  diem  and  mileage  of  any  one  supervisor  shall  not  ex- 
ceed the  sum  of  two  hundred  dollars. 

Salaries  of  officers. 

Sec.  14.  The  officers  of  Modoc  county  shall  receive  the  following  salaries  and 
fees:  The  treasurer  shall  receive  per  annum  the  sum  of  six  hundred  dollars;  the 
assessor,  for  assessing  said  county,  shall  receive  per  annum  the  sum  of  six. 
hundred  dollars;  the  district  attorney  the  sum  of  five  huudi-ed  dollars,  and  the 
fees  allowed  the  district  attorney  of  Siskij'ou  county;  the  superintendent  of 
jiublic  schools,  the  sum  of  three  hundred  dollars;  the  sheriff  and  county  clerk 
shall  receive  the  same  fees  the  sheriff  and  county  clerk  of  Siskiyou  receive;  pro- 
vided, that  when  said  fees  are  a  charge  against  said  ]Modoc  county,  a  deduction 
of  twenty-five  per  cent,  shall  be  made  therefrom;  and,  provided  further,  that 
the  county  clerk,  as  clerk  of  the  board  of  supervisors,  board  of  equalization, 
and  board  of  canvassers,  shall  receive  the  sum  of  one  hundred  and  fifty  dollars 
per  annum,  payable  quarterly.  The  other  officers  of  Modoc  count}'  shall  receive 
no  salaries,  but  the  same  fees  allowed  similar  officers  in  Siskiyou  county. 

Notaries. 

Sec.  15.  Modoc  county  shall  be  entitled  to  five  notaries  public,  as  provided 
for  by  law. 

School  and  school  moneijs. 

Sec  16.  The  superintendent  of  public  schools  of  Siskiyou  county  shall  fur- 
nish the  superintendent  of  jDublic  schools  of  Modoc  county  a  certified  copy  of 
the  last  census  lists  of  the  different  school  districts  in  the  temtory  set  apart  to 
form  Modoc  county,  and  shall  draw  his  warrants  on  the  treasurer  of  Siskiyou 
county,  in  favor  of  the  superintendent  of  schools  of  Modoc  county,  for  all 
money  that  is  or  may  be  due  by  apportionment  or  otherwise  to  the  different 
school  districts  of  Modoc  county. 

Sec.  17.  No  indebtedness  shall  be  incurred  by  Modoc  county  which  will  in 
the  aggregate  exceed  the  sum  of  twenty  thousand  dollars. 

Sec.  18.  All  acts  and  parts  of  acts,  so  far  as  they  conflict  with  the  provisions 
of  this  act,  are  hereby  repealed. 

Sec  19.  This  act  shall  take  effect  and  be  in  force  from  and  after  its  passage. 

An  Act  supplemental  to  tlie  foregoing  act  of  February  17,  1874:. 
Approved  March  23,  1874;  1873-4,  517. 

[This  act  made  provision  for  the  hospital  fund  of  Modoc  county;  also  defined 
the  powers  of  the  commissioners  as  to  the  registry  of  voters;  also  provided  for 
the  levy  of  a  tax  for  a  building  fund;  and  extended  the  act  of  March  2(i,  1857, 
in  relation  to  hogs  found  running  at  large  in  Colusa  and  other  counties,  over 
Modoc  county.] 

HUMBOLDT. 

3914.  Humboldt. 

Sec  3914.  Beginning  at  southwest  corner  of  Klamath,  as  established  in  sec- 
tion 3910;  thence  east,  to  common  corner  of  Klamath,  Humboldt,  and  Trinity, 
in  Trinity  river,  as  established  by  section  3910;  thence  southeasterly,  up  Trin- 
ity river,  to  the  mouth  of  its  south  fork;  thence  southeasterly,  along  the  east- 
ern side  of  said  south  fork,  one  hundred  feet  above  high  water  mark,  to  the 
mouth  of  Grouse  creek;  thence  south,  to  a  point  on  the  fortieth  degree  of  north 
latitude,  being  on  northern  line  of  Mendocino,  and  forming  southeast  corner  of 

489 


3914-3917  POLITICAL  CODE. 

Humboldt;  thence  west,  on  said  line,  to  the  Pacific  ocean;  thence  northerly, 
along  the  ocean  shore,  to  the  place  of  beginning. 

County  seat — Eureka. 

[See  also  act  of  March  28,  1874,  as  to  partitioning  Klamath  county  between 
Humboldt  and  Siskivou  counties,  ante,  3910.] 


3915.  Tehama. 

Skc.  3915.  Beginning  at  the  point  of  intersection  of  Sacramento  river  with 
south  line  of  township  twenty-three  north.  Mount  Diablo  base;  thence  west,  on 
said  line,  being  northern  line  of  Colusa,  to  the  summit  of  the  coast  range,  being 
southwest  corner;  thence  northerly,  on  said  summit  line,  to  the  southwest  cor- 
ner of  SLasta,  as  established  in  section  3911;  thence  easterly,  on  the  southern 
line  of  Shasta,  as  establi.shed  in  section  3911,  to  the  northwest  corner  of  Plumas, 
being  the  point  of  intersection  of  southern  line  of  Shasta  with  the  summit  line 
of  the  dividing  ridge  between  the  waters  of  Mill  and  Deer  creeks,  tributaries  of 
the  Sacramento  river,  and  Eice's  and  Warner's  creeks,  tributaries  of  the  north 
fork  of  Feather  river,  forming  northeast  corner  of  Tehama;  thence  southerly, 
along  said  summit  line,  to  the  north  point  of  Butte  county,  it  being  the  point 
where  the  northern  road  from  Big  Meadows  to  Butte  Meadows,  by  Dye's  house, 
crosses  the  said  summit  line;  thence  southwesterly,  in  a  direct  line,  to  theheac^ 
of  Kock  creek;  thence  southwesterly,  down  Piock  creek,  to  the  south  line  of  town- 
ship twenty-four  north,  Mount  Diablo  base;  thence  west,  on  said  line,  to  the 
Sacramento  river;  thence  along  said  I'iver  to  the  place  of  beginning. 

County  seat — Ked  Bluff. 

COLUSA. 

3916.  C>Au.<a. 

Sec  3916.  Beginning  at  southeast  corner,  being  northeast  corner  of  Yolo,  in 
Sacramento  river,  at  its  intersection  with  the  south  line  of  township  thirteen 
north,  Mount  Diablo  base;  thence  west,  on  said  township  line  to  the  ridge 
dividing  the  waters  flowing  into  Bear  creek  and  Stony  creek,  from  those  flowing 
west  into  the  north  fork  of  Cache  creek  and  Clear  lake;  thence  northerly,  along 
said  ridge  to  the  summit  line  of  the  coast  range,  being  the  Avestern  line  of  Lake, 
foiTuing  southwest  corner  of  Colusa  and  northwest  corner  of  Yolo  ;  thence 
northerly  on  said  summit  and  western  boundary  of  Lake,  through  Hull's 
mountain,  to  the  southwest  corner  of  Tehama,  as  established  in  section  3915; 
thence  easterly  on  southern  line  of  Tehama  to  initial  point  of  Tehama,  in 
Sacramento  river,  on  south  line  of  township  twenty-three;  thence  down  said 
river  to  tlie  southwest  corner  of  the  Llano  Seco  grant;  thence  northeasterly 
along  said  grant  line  to  its  intersection  with  the  northern  boundary  of  town- 
ship nineteen  north;  thence  east  to  Butte  creek;  thence  down  Butte  creek  to 
Butte  shiugh;  thence  up  Butte  slough  to  Sacramento  river;  thence  down  Sacra- 
mento river  to  the  place  of  beginning. 

County  seat — Colusa. 

LAKE. 

3917.  Lafre. 

Sec.  3917.  Beginning  at  the  summit  of  Mount  Hull,  near  Mount  St.  John, 
on  the  western  line  of  C(jlusa,  and  forming  the  northeast  corner  of  Lake  and 
east  corner  of  Mondocino;  thence  southerly  and  circuitously,  by  the  sunjmit 
line  of  tljc  :\rayacmas  range,  being  the  dividing  ridge  between  the  waters  flow- 
ing into  the  Hussian  and  Eel  rivers  and  those  flowing  easterly  into  Clear  lake, 
to  the  summit  of  Mount  St.  Helena;  thence  easterly  along  the  line  heretofore 
established  to  the  Buttes  canon  road;  thence  easterly,  in  a  right  line,  to  the 

490 


COUNTIES.  3917-3919 

most  northern  point  of  the  Berr^-essa  rancho;  thence  easterl}'  ahjng  tlie  northern 
line  of  said  rancho  to  the  northeast  corner  thereof;  thence  east  to  the  westei'ii 
line  of  Yolo  county,  as  established  in  section  3929;  thence  northerly,  on  the 
western  line  of  Yolo  and  Colusa  counties,  to  the  place  of  beg■innin^^ 
County  seat — Lakeport. 

An  Act  to  more  clearly  define  the  boundary-line  between  tbe  counties  of  Lake  and  Yolo,  iu 

'  the  State  of  California. 

Approved  April  1,  1872;  1871-2,  903. 

Sanford  line.  , 

Section  1.  The  line  established  by  H.  H.  Sanford,  as  deputy  surveyor-general, 
under  special  instruction  of  J.  "W.  Bost,  surveyor-j^eneral  of  California,  at  the 
request  of  the  boards  of  supervisors  of  the  counties  of  Lake  and  Yolo,  and 
designated  on  a  certain  map  on  file  in  the  oflfice  of  the  surveyor-general  of  the 
State  of  California,  indorsed  "  Map  of  the  boundary-line  between  Lake  and 
Yolo  counties,  surveyed  April,  1871,  by  H.  H.  Sanford,  deputy  surveyor- 
general  of  California,"  is  hereby  declared  the  boundary-line  between  the  said 
counties  of  Lake  and  Yolo,  provided  the  same  is  in  accordance  with  the  provis- 
ions of  an  act  to  more  clearly  define  and  establish  the  boundary-line  of  Yolo 
county,  approved  March  3,  18G6. 

Sec.  2.  This  act  shall  take  effect  from  and  after  its  passage. 


MENDOCTNO. 

3918.  Mendocino. 

Sec.  3918.  Beginning  at  the  southwest  corner  of  Huinboldt,  as  established 
in  section  3914;  thence,  southwesterly,  by  the  ocean  shore,  to  a  point  three 
miles  west  of  "VValhalla  nver;  thence  east  to  the  mouth  of  said  stream,  and  up 
the  channel  two  miles;  thence  easterly  in  a  direct  line,  on  northern  line  of  So- 
noma, to  the  most  northern  and  highest  peak  of  Redwood  mountain;  thence  east 
to  the  western  boundary  of  Lake,  on  the  summit  of  the  Mayacmas  ridge;  thence 
northerly,  along  the  western  and  northern  boundaiy  of  Lake,  as  established  in 
section  3917,  to  the  northeast  corner  thereof;  thence  northerly,  along  the 
western  boundaries  of  Colusa  and  Tehama,  as  established  in  sections  3915  and 
3916,  to  a  point  on  the  line  of  the  fortieth  parallel  of  north  latitude,  forming 
the  northeast  corner  of  Mendocino  and  the  southeast  corner  of  Trinity;  thence 
west  along  said  parallel,  on  southern  line  of  Humboldt  and  Trinity,  to  the 
place  of  beginning. 

County  seat — XJkiah  city. 

TRINITY. 

3919.  Trinity. 

Sec.  3919.  Beginning  at  the  northeast  corner  of  Mendocino,  as  established  iu 
section  3918,  on  the  summit  line  of  the  coast  range;  thence  northerly  on  said 
range  and  the  western  line  of  Tehama  and  Shasta,  to  the  point  of  intersection 
with  the  southern  line  of  Siskiyou,  being  northeast  corner  of  Trinity  and  north- 
west corner  of  Shasta;  thence  westerly,  on  the  ndge  dividing  the  waters  flowing 
south  and  west  into  Trinity  and  Salmon  rivers  from  the  waters  flowing  north 
and  east  into  Scott's  and  Sacramento  rivers,  to  common  corner  of  Klamath, 
Siskiyou,  and  Trinity,  as  established  in  section  3910;  thence  southwesterly,  on 
the  line  of  Scott's  mountain,  being  the  southern  line  of  Klamath,  to  common 
corner  of  Trinity,  Klamath,  and  Humboldt,  as  established  in  section  3909; 
thence  southerly,  by  the  eastern  line  of  Humboldt,  to  the  fortieth  parallel  of 
latitude,  being  the  northern  line  of  Mendocino,  forming  southwest  corner; 
thence  east,  to  the  place  of  beginning. 

County  seat — "Weaverville. 

491 


3920-3922  POLITICAL  CODE. 

PLUilAS. 

3920.  Phunaff. 

Sec.  3U20.  Beginning  on  dividing  ridge  between  the  waters  of  Yuba  and 
Feather  rivers,  at  common  corner  of  Yuba,  Butte,  and  Phimas,  established  by 
siu-vey  and  map  of  Joseph  Johnston,  county  surveyor  of  Yuba  county,  July, 
eighteen  hundred  and  Hfty-seven,  and  indicated  by  a  large  spruce  tree  standing 
in  front  of  the  Buckeye  house,  marked  "  Corner  of  Plumas,  Butte,  and  Yuba;" 
thence  northeasterly,  by  direct  line  to  the  northwest  corner  of  Sierra  and  the 
south  corner  of  Plumas,  in  Slate  creek,  at  a  j^oint  where  the  third  course  or 
termiuating  north  and  south  line  of  survey  of  Keddie  and  Church,  made  June 
nineteenth,  eighteen  hundred  and  sixty-six,  crosses  said  creek;  thence  north- 
easterly up  said  creek,  to  the  intersection  of  the  first  north  and  south  line  of 
said  survey;  thence  north,  on  said  line,  to  the  initial  point  thereof,  being  the 
summit  Hue  of  the  ridge  dividing  the  waters  of  Feather  river  from  the  waters 
of  the  Yuba  river;  thence  easterl}',  on  said  summit  line,  and  east  to  "  The 
Falls,"  about  one  mile  below  the  outlet  of  Gold  lake;  thence  east,  to  the  sum- 
mit of  the  ridge  which  divides  Long  valley  from  Sierra  valley,  this  point  form- 
ing the  most  southern  southwest  corner  of  Lassen,  as  established  in  section 
3912,  also  the  southeast  corner  of  Plumas;  thence  northwesterly,  on  the  south- 
western irregular  line  of  Lassen,  as  established  in  section  3912,  to  the  southeast 
corner  of  Shasta,  as  established  in  section  3911;  thence  west  on  the  southern 
line  of  Shasta,  to  the  northeast  corner  of  Tehama,  as  established  in  section 
3915;  theuce  southerly,  on  the  ridge,  being  eastern  line  of  Tehama  and  Butte, 
to  the  jjoint  of  intersection  of  a  line  running  northwesterly  from  the  initial 
point,  at  the  Buckeye  house,  in  line  with  said  initial  j)oiiit  and  the  southern 
edge  of  ^Talker's  plains;  thence  on  said  line  to  the  place  of  beginning. 

County  seat — Quincy. 

SIERRA. 

3921.  Sierra. 

Sec.  3921.  Beginning  at  the  south  corner  of  Plumas,  in  the  centre  of  Slate 
creek,  as  established  in  section  3920;  thence  easterly,  on  southern  line  of  Plu- 
mas, as  established  in  said  section,  to  the  range  lying  between  townships  twenty- 
9ue  north,  range  thirteen  east,  and  township  twenty-one  north,  fourteen  east, 
Mt.  Diablo  meridian;  thence  north,  on  said  range  line,  to  the  northwest  corner 
of  town.ship  twenty-one  north,  fourteen  east,  Mt.  Diablo  B.  and  M.;  thence 
east  on  the  line  between  townships  twenty-one  and  twenty-two  north,  Mt. 
Diablo  base,  to  the  state  line  forming  the  northeast  corner;  thence  south,  on 
said  state  line,  to  the  northeast  corner  of  Nevada  county,  a  point  east  of  the 
source  of  south  fork  of  the  middle  Yuba  river;  thence  w4.st,  to  the  source  of, 
and  down  the  soutli  f(jrk  and  middle  Yuba  river,  to  a  point  ten  miles  above  the 
moutli  of  the  latter;  thence  in  a  straight  line,  northerly,  to  a  point  on  the  north 
fork  of  the  Yuba  river,  known  as  Cuteye  Foster's  bar;  down  said  river,  to  the 
mouth  of  Big  Canon  creek;  thence  up  said  creek,  four  miles;  thence  in  a 
straight  line  to  tlio  place  of  beginning. 

County  seat— Dcnvnioville.  [Ainendmenl,  approved  March  IG,  1874;  Amend- 
menls  1873-4,  ICG;  took  effect  immediately}-^ 

13UTTE. 

3922.  BuUe. 

Sec  3922.  Beginning  at  the  northwest  corner  of  Yuba,  in  Feather  river,  at 
the  mouth  of  Houcut  creek;  thence  northeasterly  up  the  Honcut  creek  and  the 

(1)  The  original  Brrctlon  denrril^.l  thf  northerly  lino     corner  thereof  and  southwest  comer  of  LasBen;  thence 
U  follows:      thence  eauterly,  on  Houtliern  llii.-  „f  v\\\.     tast  to  the  Btutc  line  " 
ram,  tn  eHtablluhed  in  said  Bectlon,  to  the  HoutheaBt 

492 


COUNTIES.  3922-3924 

north  or  Natchez  branch  of  the.  same,  to  its  source,  on  line  estahlished  l)y  sur- 
veyor-general on  survey  of  Westcoatt  and  Henning,  eighteen  hundred  and  tifty- 
nine;  thence  to  the  summit  line  of  the  ridge  dividing  the  waters  of  the  Yuba  and 
Feather  rivers;  thence  northeasterly,  up  said  ridge,  on  line  of  said  survey,  to  tho 
third  station  tree  westerly  from  the  Woodvillc  house;  thence  in  aright  hue  fifty 
chains,  more  or  less,  to  a  station  tree  easterly  from  said  house  about  twontv- 
six  chains,  said  right  line  passing  about  three  chains  northerly  of  said  house; 
thence  northeasterly  on  said  ridge  and  survey,  to  a  point  on  line  of  said  suney, 
a  little  westerly  from  the  village  of  Strawbeny  valley,  which  point  is  two  tliou- 
sand  feet  distant  westerly,  in  right  line  from  point  of  highest  altitude  on  line  of 
said  survey  east,  and  within  three  hundred  yards  of  the  village  of  Struwhcny 
valley;  thence  to  the  common  corner  of  Plumas,  Butte,  and  Yuba,  as  estab- 
lished in  section  three  thousand  nine  hundred  and  twenty' ;  thence  noiihwesterly, 
on  southwesterly  line  of  Plumas,  as  established  in  said  section,  to  the  most 
eastern  southeastei'n  corner  of  Tehama,  as  established  in  section  three  thou- 
sand nine  hundred  and  fifteen,  forming  also  the  north  corner  of  Butte;  thence 
southwesterly,  on  the  southeasterly  line  of  Tehama,  to  the  southeast  corner  of 
Tehama,  at  point  of  intersection  of  Itock  creek  and  southern  line  of  township 
twenty-four  north.  Mount  Diablo  base;  thence  west  on  said  township  line  to 
the  Sacramento  river;  thence  down  said  river,  to  the  southwest  corner  of  the 
Llano  Seco  grant;  thence  northeasterly  along  said  grant  line  to  its  intersection 
with  the  northern  boundary  of  township  nineteen  north;  thence  east  to  "Wat- 
son's bridge  on  Butte  creek;  thence  on  Colusa  county,  east  line,  doAvn  Butte 
creek,  to  the  northwest  corner  of  Sutter  county,  as  established  in  section  three 
thousand  nine  hundred  and  twenty-six;  thence  east  on  north  line  of  Sutter 
county  to  Feather  river;  thence  down  Feather  river  to  place  of  beginning. 

Count}'  seat — Oroville.     [Amendment,  approved  March  7,  1874;  Amendments 
1873-4,  167;  took  effect  from  passage  }^^ 


NEVADA. 

3923.  Nevada. 

Sec.  3923.  Beginning  at  northwest  corner,  at  a  point  in  the  main  Yuba  river 
at  the  mouth  of  Deer  creek;  thence  up  the  Main  Yuba,  to  the  mouth  of  the 
Middle  Yuba;  thence  up  the  latter,  to  the  mouth  of  the  south  fork  of  the  same; 
thence  iip  the  south  fork,  to  its  source;  thence  east,  to  the  eastern  line  of  the 
state,  all  on  the  southeastern  and  southern  lines  of  Yuba  and  Sierra;  thence 
south,  along  the  state  line,  to  the  northeast  corner  of  Placer,  as  established  in 
section  3924;  thence  westerly,  on  the  northern  line  of  Placer,  as  established 
in  said  section,  to  the  source  of  Bear  river;  thence  down  Bear  river,  to  a  point 
south  of  the  junction  of  Deer  creek  and  the  Main  Yuba,  forming  southwest 
corner;  thence  north,  to  the  place  of  beginning. 

County  seat — Nevada  city. 

PLACER. 

3924.  Placer. 

Sec.  3924.  Beginning  on  southwest  corner,  at  a  point  where  the  west  line  of 
range  five  east.  Mount  Diablo  meridian,  intersects  the  northern  line  of  Sacra- 
mento county,  as  established  in  section  3928;  thence  north,  to  the  northwest 
corner  of  township  twelve  north,  range  five  east;  thence  east,  to  the  southwest 
corner  of  section  thirty-four,  township  thirteen  north,  range  five  east;  thence 
north,  to  Bear  river;  thence  on  southern  line  of  Nevada,  up  said  river,  to  its 

(a)  The  original  section  described  the  boundary-line     Colusa,  Bouthettsterly  to  Watson's  bridge,"  and  so  on  as 
after  striking  the  Sacramento  river  as  follows:  "  theuce     in  the  amendment, 
down    said  river  to  Placer   city;  thence  on  line  of 

493 


3924-3927  POLITICAL  CODE. 

source;  thence  east,  in  a  direct  line,  to  the  eastern  line  of  the  State  of  Califor- 
nia, fonning  northeast  corner;  thence  southerly,  along  said  line,  to  the  north- 
east corner  of  El  Dorado,  as  established  in  section  3927;  thence  westerly,  on 
the  northern  lines  of  El  Dorado  and  Sacramento,  as  established  in  sections  3927 
and  3928,  to  the  place  of  beginning. 
County  seat — Aubui-n. 

YUBA. 

3925.  Yuba. 

Sec.  3925.  Beginning  at  southwest  corner,  at  junction  of  Feather  and  Bear 
rivei's;  thence  up  Bear  river,  on  the  line  of  Sutter  and  Placer,  to  southwest 
corner  of  Nevada,  as  established  in  section  3923;  thence  north,  on  Nevada 
line,  to  the  junction  of  Deer  creek  and  Main  Yuba;  thence  up  the  Main  to  the 
Middle  Yuba,  and  up  the  Middle  Yuba  ten  miles,  to  the  southwest  corner  of 
Sien-a,  as  established  in  section  3921;  thence  in  direct  line  northerly,  and  on 
line  of  Sierra,  to  Cuteye  Foster's  bar,  on  North  Yuba  river;  thence  down  the 
river  to  the  mouth  of  Big  Canon  creek;  thence  up  said  creek  four  miles;  thence 
in  direct  line  to  south  corner  of  Plumas  and  northwest  corner  of  Sierra,  in 
Slate  creek,  as  established  in  sections  3920  and  3921;  thence  northwesterly,  in 
a  dii'ect  line,  to  common  corner  of  Plumas,  Butte,  and  Yuba,  in  front  of 
Buckeye  house,  as  established  in  section  3920;  thence  on  southwestern  line  of 
Butte,  as  established  in  Westcoatt  and  Henuing's  survey  and  map,  down  the 
Honcut  creek,  to  its  junction  with  Feather  river;  thence  down  Feather  river,  to 
the  place  of  beginning. 

County  seat — Maiysville. 

SUTTER. 

3926.  Sutler. 

Sec  3926.  Beginning  at  northwest  corner  of  Sacramento  county,  as  estab- 
lished in  section  3928;  thence  up  the  Sacramento  river  to  the  mouth  of  Butte 
creek;  thence  up  said  creek  to  its  intersection  with  the  south  line  of  section 
nineteen,  township  seventeen  north,  range  one  east.  Mount  Diablo  base  and 
meridian;  thence  east,  on  section  lines,  to  Feather  river;  thence  down  Feather 
river  to  the  mouth  of  Bear  river;  thence  up  Bear  river  to  northwest  corner  of 
Placer,  as  established  in  section  3924;  thence  along  the  western  boundary  of 
Placer  to  the  southwest  corner  thereof;  thence  westerly,  along  the  northern 
boundan*  of  Sacramento  county,  to  the  place  of  beginning. 

County  seal^ — Yuba  city. 

EL    DOKADO. 

3927.  A7  Dorado. 

Si.c.  3927.  Beginning  on  the  west  corner,  at  the  junction  of  the  north  and 
Routli  forks  of  the  American  river;  thence  up  the  north  fork  to  the  mouth  of 
the  middle  fork;  thence  up  the  middle  fork  to  the  mouth  of  the  south  fork 
of  the  middle  fork  at  Junction  bar;  thence  up  said  last-named  fork  to  a  point 
where  the  same  is  intersected  by  the  Georgetown  and  Lake  Bigler  trail;  thence 
along  siiid  trail  to  Sugar  Pine  point,  on  the  western  shore  of  Lake  Bigler;  thence 
oast  to  the  state  line;  thence  south  and  southeasterly,  on  the  state  line,  to  the 
northern  corner  of  Alpine,  being  the  point  where  the  state  line  crosses  the  east- 
ern summit  line  of  the  Sierra  Nevada  mountains;  thence  soutlnvesterlv,  alon"- 
the  western  line  of  Alpine,  as  established  in  section  3931,  to  the  common  corner 
of  Aljune,  Amador,  and  El  Dorado,  as  established  by  said  section;  thence  west- 
erly, on  the  northern  line  of  Amador,  as  established  in  section  3930,  and  down 
the  Cosinnnes  river  and  south  fork  thereof  to  the  eastern  line  of  Sacramento, 
as  established  in  section  3928;  thence  northerly,  by  the  eastern  line  of  Sacra- 
mento, to  the  south  fork  of  tlie  American  river;  thence  down  the  latter  to  the 
place  of  beginning. 

County  seat — Placerville. 

494 


COUNTIES.  3928-3930 

SACRAMENTO. 

3928.  Sacramento. 

Sec.  3928.  Beginning-  on  nortliorn  line  of  the  county  at  a  point  ton  niiloH  north 
of  a  point  which  was  on  tlie  thirtieth  of  March,  eighteen  humlred  and  fiftj'- 
seven,  the  mouth  of  the  American  river;  thence  easterh',  to  the  junction  of  tlie 
nortli  and  south  forks  of  said  river;  thence  up  the  principal  chanjiel  of  the  south 
fork  to  a  point  one  mile  above  the  head  of  Mormon  island,  so  as  to  include  said 
island  in  Sacramento  county,  forming  northeast  corner;  thence  southerly  to  a 
jDoint  on  the  Cosumnes  river  eight  miles  above  the  house  of  William  Daylor; 
thence  south  to  Dry  creek,  forming  southeast  corner;  thence  down  said  creek 
to  its  entrance  into  the  Mokelumne  river;  thence  down  the  Mokelumne  river  to 
a  point  where  said  river  divides  into  east  and  west  branches;  thence  down  the 
east  branch  to  its  junction  with  the  west  branch;  thence  down  said  river  to  its 
junction  with  the  San  Joaquin  river;  thence  down  the  San  Joaquin  river  to  the 
mouth  of  the  Sacramento  river,  at  the  head  of  Suisun  ba}',  forming  southwest 
corner;  thence  up  the  Sacramento  river  to  the  mouth  of  Merritt's  slough;  thence 
up  said  slough  to  the  mouth  of  Sutter  slough;  thence  up  said  Sutter  slough  to 
the  Sacramento  river;  thence  up  the  Sacramento  river  to  a  point  west  of  the 
place  of  beginning,  forming  northwest  corner  of  Sacramento  county;  thence 
east  to  the  place  of  beginning. 

County  seat — Sacramento  city. 

YOLO. 

3929.  Yolo. 

Sec  3929.  Beginning  on  southeast  corner,  at  the  most  easterly  northeast 
corner  of  Solano,  in  Sutter  slough,  at  its  intersection  with  the  first  standard 
north;  thence  west  on  said  standard  line  to  west  line  of  range  three  east.  Mount 
Diablo  meridian;  thence  north  on  said  range  line  to  the  northeast  corner  of 
township  seven  north,  two  east;  thence  west  nine  and  seventy-two  one  hun- 
dredths chains  to  southeast  corner  of  township  eight,  two  east;  thence  north 
on  easterly  line  of  said  township  to  the  old  bed  of  Putah  creek;  thence  Avesterly 
up  the  old  bed  and  main  Putah  creek  to  a  point  on  eastern  line  of  Napa,  in 
the  canon  called  Devil's  Gate,  where  the  highest  ridge  of  mountains  divides  the 
waters  of  the  Sacramento  from  Berryessa  valley,  forming  the  most  westerly  of 
the  southwest  corners  of  Yolo  and  northwest  corner  of  Solano;  thence  northerly 
along  the  highest  ridge  of  said  mountains  to  Cache  creek;  thence  east  to  the 
summit  of  the  spur  of  the  coast  range  which  divides  the  waters  flowing  east 
into  Bear  creek  and  Stony  creek,  and  those  flowing  west  into  the  north  fork  of 
Cache  creek;  thence  northerly  along  the  said  dividing  ridge,  following  the 
divide  of  said  waters  to  the  summit  of  the  coast  range  of  mountains  on  the 
easterly  line  of  Napa  and  Lake  and  to  the  southwest  corner  of  Colusa,  as  estab- 
lished in  section  3916;  thence  easterly  on  southern  line  of  Colusa,  as  established 
in  said  section,  to  Sacramento  river,  forming  the  northeast  corner  at  the  pomt 
of  intersection  of  the  southern  line  of  township  thirteen  north,  Mount  Diablo 
base;  thence  down  said  river  to  Sutter  slough;  thence  down  said  sluugh  to  the 
place  of  beginning. 

County  seat — Woodland. 

[See  also  act  of  AjDril  1,  1872,  ante,  3917.] 

AMADOK. 

3930.  Amador. 

Sec  3930.  Beginning  at  southwest  corner,  in  the  Mokelumne  nver,  on  the 
eastern  boundary  of  San  Joaquin,  as  established  in  section  3932;  thence  up  said 
river  to  its  junction  with  the  north  fork  of  the  same;  thence  up  the  said  north 
fork  to  the  line  of  Alpine,  being  at  a  point  south  of  common  corner  of  Amador, 

■195 


3930-3932  POLITICAL  CODE. 

•Alpine  and  El  Dorado,  \vliich  is  in  the  centre  of  the  Amador  and  Nevada  road, 
iu  front  of  Z.  Kirkwood's  house,  as  established  in  section  3931;  thence  north  by 
the  liue  of  Alpine  to  said  common  corner;  thence  westerly  along  said  road  to  a 
point  east  of  the  source  of  the  south  fork  of  the  south  fork  of  the  Cosumnes 
river;  thence  west  to  said  som-ce;  thence  down  the  south  fork  of  the  south  fork 
and  the  south  fork  and  the  main  Cosumnes  river  to  the  eastern  line  of  Sacra- 
mento, as  estabhshed  in  section  3028;  thence  by  eastern  lines  of  Sacramento 
and  San  Joaquin  to  the  place  of  beginning. 
County  seat — Jackson. 

ALPINE. 

3931.  J//-M<-'. 

Sec  3931.  Beginning  at  north  corner,  at  a  point  where  the  state  line  crosses 
the  east  summit  of  the  Sierra  Nevada  mountains,  being  the  most  easterly  corner 
of  El  Dorado;  thence  southwesterl}'  along  said  summit  to  a  point  two  miles 
west  of  James  Green's  house,  in  Hoj^e  valley,  called  Thompson's  peak;  thence 
southwesterly  in  a  direct  line  to  a  i^oiut  on  the  Amador  and  Nevada  turnpike 
road  iu  front  of  Z.  Kirkwood's  house,  being  common  corner  of  Amador,  Alpine, 
and  El  Dorado;  thence  south  across  the  north  fork  of  the  Mokelumne  river  to 
the  road  leading  from  West  Point,  in  Calaveras,  to  Big  Tree  road,  near  the  Big 
Meadows;  thence  easterly  along  said  West  Point  road  to  the  Big  Tree  road; 
thence  easterly  in  a  dii'ect  line  to  where  the  Sonora  trail  strikes  the  middle  fork 
of  the  Stanislaus  river;  thence  easterly  along  said  trail  to  the  summit  of  the 
SieiTa  Nevada  mountains;  thence  northerly  along  said  summit  to  the  dividing 
ridge  between  "West  Walker  and  Carson  rivers;  thence  northeasterly  along  said 
dividing  ridge  to  the  state  line,  forming  easterly  corner  of  Alpine  and  northerly 
comer  of  Mono;  thence  northwest  along  said  state  line  to  the  place  of  begin- 
ning. 

County  seat — Silver  Mountain. 

SAN     JOAQUIN. 

3932.  Sun  Joaquin. 

Sec.  3932.  Beginning  at  the  junction  of  the  San  Joaquin  and  Mokelumne 
rivers,  on  the  line  of  Sacramento  county;  thence  up  the  latter  to  the  mouth  of 
Dry  creek;  thence  up  Dry  creek  to  the  southeast  corner  of  Sacramento,  as 
establislied  in  section  3928;  thence  southeasterly,  to  a  point  on  Mokelumne 
river,  being  the  i)oint  of  beginning  of  survey  of  Boucher  and  Wallace  of  line 
between  San  Joaquin  and  Calaveras  counties,  May,  eighteen  hundred  and  sixty- 
four;  tlionce  southeasterly,  on  the  liue  of  said  survey,  to  the  extreme  northern 
corner  of  Stanislaus  county,  on  north  side  of  and  near  to  Calaveras  river,  at  a 
l)oiut  on  western  line  of  range  ten  east,  Mount  Diablo  meridian,  as  established 
by  survey  of  George  E.  Drew,  approved  May,  eighteen  hundred  and  sixty,  shown 
ou  map  of  Huid  survey;  thence  south,  on  said  range  line,  to  Stanislaus  river; 
thence  down  said  river  to  its  confluence  with  the  San  Joaquin;  thence  south- 
west to  the  summit  of  the  coast  range,  as  shown  on  survey  and  map  of  Wallace 
and  Stakes,  May,  eighteen  hundred  and  sixty-eight,  and  forming  the  common 
corner  (^f  San  Jompiin,  St;inisluus,  Santa  .Clara  and  Alameda,  as  shown  also  on 
map  of  Boardman  and  Stakes,  July,  eighteen  hundred  and  sixty-eight;  thence 
northwesterly,  following  the  summit  of  the  said  coast  range  to  a  post  near  the 
middle  of  section  thiiiy-two,  township  four  south,  range  four  east;  thence  north 
to  the  s(;jitlieast  corner  of  Contra  Costa,  being  a  point  on  the  west  channel  of 
the  San  Joatpiin  river,  as  laid  down  on  Gibbe's  map,  at  a  bend  where  the  said  west 
channel,  running  downward,  takes  a  general  course  north,  which  point  is  shown 
on  map  of  Boardman  and  Stakes,  July,  eighteen  hundred  and  sixty-eight;  thence 

49G 


COUNTIES.  3933-3i)35 

clown  the  said  west  channel  to  its  confluence  with  tlio  main  river;  tlience  down 
said  river  to  the  place  of  beginning. 
County  seat — Stockton. 

STANISLAUS. 

3933.  Sfanislans. 

Sec.  3933.  Beginning-  at  common  corner  of  Stanislaus,  Santa  Clara,  Alameda, 
and  San  Joaquin,  on  the  summit  of  Mount  Boardman,  of  the  Mount  Diablo 
range,  as  shown  on  survey  and  map  of  Wallace  and  Stakes,  IMay,  eighteen 
hundred  and  sixty- eight;  thence  southeasterly,  on  the  summit  line  of  said 
range,  being  eastern  line  of  Santa  Clara,  to  the  northwest  corner  of  Merced, 
forming  the  southwest  corner  of  Stanislaus,  as  established  l)y  survey  and  map 
of  A,  J.  Stakes,  July,  eighteen  hundred  and  sixty-eight;  thence  northeasterly, 
on  line  as  established  by  said  last-named  survey,  to  the  junction  of  the  Merced 
and  San  Joaquin  rivers;  thence  down  the  San  Joaquin  seven  miles;  thence  in  a 
direct  line  a  little  north  of  east  to  a  monument  established  by  survey  of  A.  J. 
Stakes,  being  on  the  summit  of  the  ridge  between  Merced  and  Stanislaus,  and 
marking  common  corner  of  Tuolumne,  Merced,  Marijjosa,  and  Stanislaus; 
thence  northwesterly,  in  a  direct  line^  and  crossing  the  Stanislaus  river,  to 
monument  established  by  survej'^  and  map  of  George  E.  Drew,  May,  eighteen 
hundred  and  sixty,  on  the  north  bank  of  said  last-named  river;  thence  north- 
westerly, on  line  of  said  survey,  to  its  intersection  with  western  line  of  range 
ten  east,  Mount  Diablo  meridian,  which  point  is  marked  by  a  monument  estab- 
lishing the  north  corner  of  Stanislaus  county;  thence  south,  on  said  range  line, 
to  Stanislaus  river;  thence  down  the  latter  to  its  mouth  in  San  Joaquin  river; 
thence  southwesterly  on  line  as  surveyed  and  mapped  by  "Wallace  and  Stakes, 
May,  eighteen  hundred  and  sixty -eight,  to  the  place  of  beginning. 

County  seat — Modesto. 

MERCED. 

3934.  llerced. 

Sec.  3934.  Beginning  at  northwest  corner,  being  southwest  corner  of  Stan- 
islaus, as  shovv^n  on  survey  and  map  of  A.  J.  Stakes,  eighteen  hundred  and 
sixty-eight;  thence  northeasterly,  on  southern  line  of  Stanislaus,  as  described 
in  section  3933,  to  common  corner  of  Tuolumne,  Mariposa,  Merced,  and  Stan- 
islaus, as  established  in  said  section;  thence  southeasterly,  by  direct  line,  being 
western  line  of  Mariposa,  to  Phillips'  ferry,  on  Merced  river;  thence  south- 
easterly, on  line  of  Mariposa,  being  line  shown  on  "map  of  Mariposa 
county,"  to  Newton's  crossing  on  Chowchilla  creek,  forming  southeast  corner; 
thence  down  the  northern  side  and  on  high  water  mark,  being  on  line  of 
Fresno,  to  the  lower  clump  of  cottonwood  timber  at  the  sink  of  said  creek; 
thence  south,  forty-five  degrees  west,  to  the  eastern  line  of  Monterey,  on  sum- 
mit of  coast  range,  forming  southwest  corner;  thence  northwesterly,  by  said 
summit  and  line  of  Monterey  and  Santa  Clara,  to  the  place  of  beginning. 

County  seat — Snelling. 

MONO. 

3935.  Mono. 

Sec.  3935.  Beginning  at  north  corner  on  state  line,  being  east  corner  of 
Alpine,  as  established  in  section  3931;  thence  southwesterly,  on  the  easterly 
line  of  Alpine,  as  established  in  section  ^931,  to  the  main  summit  of  the  Sierra 
Nevada  mountains;  thence  southerly,  along  said  summit,  on  easterly  line  of 
Alpine,  Tuolumne,  and  Fresno,  to  a  point  where  the  northern  line  of  township 
six  south,  Mount  Diablo  base,  intersects  said  summit  line,  forming  southwest 
corner;  thence  east,  on  said  township  line,  being  the  northern  line  of  Inyo,  to 
32  497 


3935-3938  POLITICAL  CODE. 

the  eastern  line  of  the  state,  forming  southeast  corner;  tlience  northwest,  on 
the  state  line,  to  the  phice  of  beginning-. 
County  seat — Bridgeport. 

CALAVERAS. 

3936.  Calaveras. 

Sec.  393G.  Beginning  at  southern  corner,  at  a  point  in  the  Stanislaus  river 
where  it  intersects  the  eastern  Hue  of  Stanislaus  county,  as  established  in  sec- 
tion 3933,  being  a  point  one  mile  north  of  Knight's  ferry,  and  being  the 
western  corner  of  Tuolumne  county;  thence  up  said  river  and  north  fork 
thereof,  to  the  easterly  line  of  Al^Dine,  as  established  in  section  3931;  thence 
northerly,  on  the  line  of  Alpine,  to  the  southeast  corner  of  Amador,  as  estab- 
lished in  sections  3930  and  3931;  thence  southwesterly,  on  the  southern  line  of 
Amador,  down  the  Mokeluiune  river,  to  the  southwest  corner  of  Amador,  on 
eastern  line  of  San  Joaquin  county;  thence  southerly  and  southeasterly,  on 
line  of  San  Joaquin  and  Stanislaus,  as  established  in  sections  3932  and  3933,  to 
the  place  of  beginning. 

County  seat— San  Andreas. 

TUOLUMXE. 

3937.  Tuolumne. 

Skc.  3937.  Beginning  at  the  most  western  corner,  being  the  southern  corner 
(if  Calaveras,  as  established  in  section  3936,  in  Stanislaus  river;  thence  south- 
ea.sterly  to  common  corner  of  Merced,  Mariposa,  Stanislaus,  and  Tuokmme,  as 
established  in  section  3933  ;  thence  easterly  on  northern  line  of  Mariposa, 
following  summit  line  of  the  dividing  ridge  between  Tuolumne  and  Merced 
rivers,  to  Mount  Lyell,  as  marked  on  Warren  Holt's  map,  eighteen  hundred 
and  sixty-nine,  and  the  summit  of  the  Sierra  Nevada  mountains,  being  on  the 
western  line  of  Mono  and  common  corner  of  Tuolumne,  Mariposa,  and  Fresno; 
thence  northerly  by  the  line  of  Mono,  being  the  summit  line  of  the  Sierra 
Nevada  mountains,  to  the  southern  corner  of  Alpine,  as  established  in  section 
3931;  thence  northwesterly  by  the  line  of  Alpine  to  the  southeastern  corner  of 
Calaveras;  thence  westerly  on  the  line  of  Calaveras  and  down  the  Stanislaus 
river,  to  the  place  of  beginning. 

Ccnuity  seat — Sonora. 

MARIPOSA. 

3938.  Mavipom. 

Sec.  3938.  Beginning  at  the  initial  point  of  Fresno  county,  being  where  the 
Stockton  road  to  Millerton  crosses  the  Chowchilla  creek,  known  as  Newton's 
crossing;  thence  north,  forty-five  degrees  east,  to  the  southwest  corner  of  sec- 
tion eleven,  township  six  south,  range  twenty  east.  Mount  Diablo  base  and 
meridian;  thence  east,  following  section  lines  to  main  ridge  between  waters  of 
Big  creek  and  Fresno  river;  thence  easterly  on  the  main  ridge  which  divides  the 
waters  of  the  Merced  and  San  Joaquin  rivers,  to  the  intersection  of  the  same 
with  the  summit  line  of  the  Sierra  Nevada  mountains  and  western  line  of  Mono, 
the  same  itoint  forming  common  corner  of  Tuolumne,  Fresno,  and  Marii)Osa, 
as  dcHcribed  in  section  3937;  thence  westerly,  by  the  southern  boundary  of 
Tuolunjne,  to  the  soutliwest  corner  thereof,  being  common  corner  of  Stanislaus, 
Merced,  Tuolumne,  and  Mariposa;  thence  southeasterly,  on  western  line  of 
Merced,  as  established  in  section  3934,  to  the  place  of  beginning. 

County  seat — Mariposa. 

Au  Act  U>  bttter  defiue  the  boiiudnry-liuf!  of  Mariposa  and  Fresuo  counties. 
Apiiroved  April  1,  187'2;  1871-2,  891. 

I)(')t(ri])lion  of  ltiiiiiirhn')j-line. 

Section  1.  The  line  at  present  known  as  the  boundary  line  between  Mari- 
posa and  Fresno  counties,  from  the  westerly  point  of  junction  of  said  counties, 

498 


COUNTIES.  3938-3930 

running  easterly  to  the  southwest  corner  of  section  eleven  and  tlie  nortliwcst 
corner  of  section  fourteen,  in  township  six  south,  range  twenty  east,  of  M(junt 
Diablo  meridian;  thence  east  to  the  northwest  corner  of  section  fourteen,  in 
township  six  south,  range  twenty-one  east;  thence  north  to  the  northwest  cor- 
ner of  section  thirty -five,  in  township  five  soutli,  range  twenty-one  east;  thence 
east  to  the  southwest  corner  of  section  thirty,  in  township  five  south,  range 
twenty-two  east;  thence  north,  to  the  southwest  corner  of  the  Mariposa  big  ti-ee 
grant;  thence  east  along  the  line  of  said  grant  to  the  soutlieast  corner  of  said 
grant;  thence  north  along  the  line  of  said  grant  to  the  northeast  corner  of  the 
same;  thence  north  to  the  original  boundary-line  between  the  counties  of  Mari- 
j)osa  and  Fresno;  thence  along  said  line  to  the  present  boundary-line  of  Tuol- 
umne county,  is  hereby  declared  and  constituted  the  boundary-line  between 
said  counties.  [Amendment,  approved  February  11,  1874;  1873-4,  100;  (<iok 
effect  from  passage.'-^'* 

Survey  of  line. 

Sec.  2.  The  respective  county  surveyors  of  Maiiposa  and  Fresno  counties 
shall  proceed  to  survey  and  comjjlete  said  defining  line,  with  the  necessary 
monuments,  prior  to  the  first  day  of  September,  1872.  Reasonable  compensa- 
tion, not  to  exceed  one  hundred  and  fifty  dollars  each,  may  be  allowed  by  the 
supervisors  of  Mariposa  and  Fresno  counties,  to  be  paid  out  of  the  county 
general  funds  of  said  counties;  and  in  case  of  a  disagreement,  they  shall  be 
empowered  to  call  in  a  third  surveyor  as  umpire,  whose  decision  shall  be  final, 
but  whose  services  shall  in  no  case  be  an  additional  charge. 

Seg.  3.  The  act  entitled  "An  Act  to  better  define  the  boundary-line  between 
Fresno  and  Mariposa  counties,"  approved  March  21),  1870,  is  hereby  repealed. 

Sec.  4.  This  act  shall  take  effect  immediately. 

FRESNO. 

3939.  Fresno. 

Sec.  3939.  Beginning  at  southeast  corner  of  Merced  and  southwest  corner  of 
Mariposa,  being  a  j)oint  where  the  Stockton  road  to  Millerton  crosses  the 
Chowchilla  creek,  known  as  Newton's  crossing;  thence  westerly  down  said 
stream,  on  the  north  side,  on  line  of  high  water  mark,  being  on  southeastern 
line  of  Merced,  to  the  lower  clumj)  of  cottonwood  timber  at  the  sink  of  said 
creek;  thence  south,  forty-five  degrees  west,  and  on  line  of  Merced,  to  the 
eastern  boundary-line  of  Monterey,  as  described  in  section  3948,  being  on 
summit  of  coast  range;  thence,  following  said  boundary-line  on  said  summit, 
in  a  southeasterly  direction,  to  a  point  in  the  same,  which  point  is  south  forty- 
five  degrees  west  from  the  point  on  King's  river  where  northern  line  of  town- 
ship sixteen  south  crosses  the  same;  thence  north,  forty-five  degrees  east,  to 
said  point  on  King's  river;  thence  east,  along  northern  line  of  townsliip  sixteen 
south,  to  the  dividing  ridge  between  the  waters  of  King's  river  and  Kawdah 
river;  thence  easterly,  on  the  said  dividing  ridge,  to  the  summit  of  the  Sierra 
Nevada,  being  the  western  line  of  Inyo;  thence  northwesterly,  on  the  summit 
line  and  lines  of  Inyo  and  Mono,  to  Mount  Lyell,  the  common  corner  of 
Tuolumne,  Mariposa,  and  Fresno;  thence  westerly  and  southwesterly,  on  the 
southeasterly  line  of  Mariposa,  as  established  in  section  3938,  to  the  place  of 
beginning. 

County  seat — Millerton. 

An  Act  to  permaueutly  locate  the  county  scat  of  Fresno  county. 
Approved  March  30,  1874;  1873-1,  913. 

County  seat. 

Section  1.  From  and  after  the  first  day  of  October,  a.  d.  1874,  the  county 

(a)  The  original  section  was  the  same,  execi-t  that  it  diO  no    have  the  words  "of  Tuolumne  county." 

i99 


3939-3941  POLITICAL  CODE. 

seat  of  Fresno  county  sLall  be  located  at  the  town  of  Fresno;  provided,  the 
board  of  supervisors  may  have  power  to  move  said  county  seat  to  the  said  town 
of  Fresno  at  any  time  prior  to  said  first  day  of  October,  a.  d.  1874,  if  in  their 
iud'nnent  thev  mav  deem  it  necessary  and  advisable. 

JluihUug!^. 

Sec.  2.  The  board  of  supervisors  of  Fresno  county  are  authorized  to  forthwith 
proceed  to  erect  suitable  buildings  in  the  town  of  Fresno  for  county  purposes. 

Sec.  3.  This  act  shall  take  effect  immediately. 

Au  Act  to  establish  the  couuty  Hue  between  the  comities  of  Fresno  and  Tulare. 
Approved  March  27,  1874;  1873-4,  7(i0. 

[This  act  was  virtually  repealed  by  the  operation  of  the  following:] 

An  Act  to  establish  the  county  line  between  the  comities  of  Fresno  and  Tulare. 
Approved  March  23,  1876;  1875-6,  397. 

Buuiula7-(/-Une  between  Fresno  and  Tidare  counties. 

Section  1.  The  boundaiy  between  the  counties  of  Fresno  and  Tulare  shall  be 
as  follows:  Commencing  at  a  point  on  the  eastern  boundary-line  of  Monterey 
county,  as  described  in  section  3948  of  the  Political  Code,  being  on  the  summit 
of  coast  range,  which  j)oint  is  south  forty-five  degrees  west  from  the  j^oint  on 
King's  river  where  the  northern  line  of  township  sixteen  south  crosses  the  same; 
thence  north  forty-five  degrees  east  to  said  point  on  King's  river;  thence  east 
along  northern  line  of  township  sixteen  south,  and  continuing  on  said  line  to 
the  northwest  corner  of  township  sixteen  south,  range  twenty-five  (25)  east; 
thence  north  to  the  northwest  corner  of  townshijj  fifteen  (15)  south,  range 
twenty-five  (25)  east;  thence  east  to  the  northeast  corner  of  townshij)  fifteen 
south,  range  twenty-seven  (27)  east;  thence  north  to  the  northeast  corner  of 
township  fourteen  south  of  range  twenty-seven  east;  thence  east  on  the  line 
lietween  township  thirteen  and  fourteen  south  to  the  summit  of  Sierra  Nevada, 
being  the  western  line  of  Inyo  county. 

Sec.  2.  All  acts  and  parts  of  acts  in  conflict  with  this  act  are  hereby  repealed. 

Sec.  3.  This  act  shall  take  effect  and  be  in  force  from  and  after  its  passage. 

TULARE. 

3940.  Tulare. 

Sec  394U.  Beginning  at  southwest  corner,  being  common  corner  of  Monterey, 
San  Luis  Obispo,  Kern,  and  Tulare,  and  being  the  point  where  the  line  of  the 
sixth  standard  south  crosses  the  summit  line  of  the  Mount  Diablo  range  of 
mountains;  thence  east,  on  said  standard,  to  the  point  of  intersection  with 
summit  line  of  the  Sierra  Nevada  mountains,  forming  the  southeast  corner  of 
Tulare  and  southwest  corner  of  Inyo;  tlience  northwesterly,  on  said  summit, 
being  on  the  western  line  of  Inyo,  to  the  east  corner  of  Fresno,  as  established 
in  section  3939;  thence  on  the  southern  line  of  Fresno  to  the  eastern  line  of 
!^Ionterey;  thence  southerly,  on  the  lino  of  IMonterey,  as  established  in  section 
3948,  Ui  the  place  of  beginning. 

County  seat — Visalia. 

[For  boundary-line  between  Tulare  and  Fresno  counties,  see  ante,  3937.] 

KERN. 

3941.  Krrn. 

Sec  3941.  Beginning  at  northwest  corner,  being  common  corner  of  San  Luis 
Obispo,  Monterey,  Tulare,  and  Kern,  as  estaV,lished  in  section  3940;  thence 
east,  on  sixth  standard  south.  Mount  Diablo  base,  to  the  northwest  corner  of 
San  Bernardino,  as  established  in  section  3943;  thence  south,  on  the  westerly 

500 


COUNTIES.  3941-3944 

line  of  San  Bernardino,  to  southern  line  of  township  nine  north,  San  Bernar- 
dino base,  forming  southeast  corner;  thence  west  along-  said  line  and  extension 
thereof  to  the  summit  of  the  coast  range,  being  on  the  line  of  Santa  Barl«ira, 
forming  southwest  corner;  thence  northwesterly,  on  said  summit  line,  being 
eastern  line  of  Santa  Barbara  and  San  Luis  Obispo,  to  the  place  of  beginning. 
County  seat — Havilah. 

INYO . 

3942.  Inyo. 

Sec.  3942.  Beginning  at  the  southeast  corner  of  Tulare,  as  established  in 
section  3940,  being  the  point  of  intersection  of  sixth  standard  south,  Blount 
Diablo  base,  with  summit  line  of  Sierra  Nevada  mountains;  thence  east,  ])y 
said  standard  and  extension  thereof,  to  the  eastern  line  of  the  state,  forminf;- 
southeast  corner;  thence  northwesterly,  on  state  line,  to  the  southeast  corner  of 
Mono,  as  established  in  section  3935;  thence  west  on  the  southern  line  of  Mono 
to  the  summit  of  the  Siei-ra  Nevada  mountains,  being  on  the  eastern  line  of 
Fresno,  and  forming  the  southwest  corner  of  Mono  and  northwest  corner  of 
Inyo;  thence  southeasterly  on  said  summit  line  to  the  place  of  beginning. 

County  seat — Independence. 

SAN    BERNARDINO. 

3943.  San  Bernardino. 

Sec.  3943.  Beginning  at  the  southwest  corner,  a  little  northwesterly  of  La- 
guna  Temecula,  at  a  j)oint  on  the  northern  line  of  San  Diego,  as  established  in 
section  3944,  where  a  south  line  drawn  from  the  highest  peak  of  the  Sierra  de 
Santiago  intersects  the  said  boundary  line;  thence  northwesterh'  on  the  summit 
of  said  Sierra  to  the  Santa  Anna  river,  between  the  ranch  of  Sierra  and  the 
residence  of  Bernardo  Yerba;  thence  across  the  Santa  Anna  river  along  the 
summit  of  the  range  of  hills  that  lie  between  the  Cayotes  and  Chino  (leaving 
the  ranches  Gutiveras  and  Ybana  to  the  west  of  this  line)  to  the  southwest 
corner  of  the  ranch  San  Jose;  thence  northerly'  along  the  eastern  boundaries  of 
said  ranch  and  of  San  Antonio  and  the  western  and  northern  boundaries  of 
Cucaimonga  ranch  to  the  ravine  of  Cucaimonga;  thence  northerly  up  said 
ravine  to  its  source  in  the  coast  range;  thence  north,  on  the  easterh'  line  of 
Los  Angeles  and  Kern,  to  the  sixth  standard  south,  Mount  Diablo  base,  being 
the  northeast  corner  of  Kern  and  northwest  corner  of  San  Bernardino;  thence 
east  by  said  standard  line  and  extension  thereof  to  the  state  line;  thence  south- 
easterly on  said  state  line  to  the  Colorado  river;  thence  down  said  river  to  the 
northern  boundary-line  of  San  Diego  county;  thence  westerly  along  the 
northern  boundar)'-line  of  San  Diego  county,  us  established  in  section  3944,  to 
the  j)lace  of  beginning. 

County  seat— San  Bernardino. 

SAN   MEGO. 

3944.  San  Diego. 

Sec.  3944.  Beginning  at  south  corner  of  Los  Angeles  in  the  Pacific  ocean,  op- 
posite San  Mateo  point;  thence  northerly  along  the  western  line  of  rancho  Santa 
Margarita  to  the  southern  line  of  Mission  Viejo  or  La  Paz;  thence  along  the 
southern  and  eastern  line  of  La  Paz  to  a  point  two  miles  north  of  the  south 
boundary-line  of  township  seven  south,  range  six  west,  San  Bernardino  base 
and  meridian;  thence  northeasterly,  to  the  southwest  corner  of  San  Jacinto 
Nuevo,  in  to^vnship  four  south,  range  four  west;  thence  north  along  west  bound- 
ary of  said  rancho  to  line  between  townships  three  and  four  south ;  thence  east 
to  line  between  ranges  two  and  three  west;  thence  north  on  range  line  to  a 
point  where  a  line  parallel  with  the  southern  boundary  between  the  United 
States  and  Mexico  will  just  clear  the  rancho  San  Jacinto  Viejo;  thence  north- 

501 


3W1-3946  POLITICAL  CODE. 

ensierly  aloiifr  such  parallel  line  to  the  Colorado  river;  thence  down  that  river 
to  its  junction  with  the  boundary-line  between  the  United  States  and  Mexico; 
thence  westerly,  following  that  boundary-line  into  the  Pacific  ocean;  thence 
northerly  to  place  of  begfinning. 
County  seat — San  Diej,'-o. 

LOS   ANGELES. 

3945.  Loi>  Angeles. 

Sec.  3945.  Beginning-  at  southeast  corner  of  Santa  Barbara,  in  the  Pacific 
ocean,  at  a  point  on  extension  line  of  the  northern  boundary  of  the  rancho 
called  Malag'a,  western  corner;  thence  northeasterly,  so  as  to  include  said 
rancho,  to  the  northwest  coi-ner  of  the  rancho  called  Triumfo,  running  on 
northerly  line  of  the  same  to  the  northeast  corner  thereof;  thence  to  the  sum- 
mit of  the  ridge  of  hills  called  Santa  Susanna;  thence  in  a  direct  line  north- 
westerly, to  the  southwest  corner  of  Kern,  as  established  in  section  3941,  form- 
ing the  northwest  corner  of  Los  Angeles;  thence  east,  on  southern  line  of  Kern 
to  the  western  line  of  San  Bernardino,  as  established  in  section  3943;  thence 
soutlierly,  on  western  line  of  San  Bernardino  to  its  point  of  intersection  with 
northern  line  of  San  Diego,  as  established  in  said  section;  thence  southwest- 
erly on  San  Diego  line,  as  established  in  section  3944,  to  northwest  corner  of 
San  Diego,  in  Pacific  ocean;  thence  northwesterly,  along  ocean  shore  to  place 
of  beginning;  including  the  islands  of  Santa  Catalina,  San  Clement,  and  the 
islands  oft"  the  coast  included  iu  Los  Angeles  county. 

County  seat — Los  Angeles. 

SANTA  BARBARA. 

3946.  Snida  Barbara. 

Sec.  3946.  Beginning  at  the  western  corner  of  Los  Angeles,  as  established  in 
section  3945;  thence  northerly,  on  westerly  line  of  Los  Angeles,  as  described  in 
said  section,  to  the  northwest  corner  thereof,  on  the  summit  of  the  coast  range, 
being  also  the  southAvest  corner  of  Kern,  as  established  in  section  3941;  thence 
northwesterly,  on  the  summit  line,  being  also  on  western  boundary  of  Kern,  to 
a  point  of  intersection  with  the  southern  line  of  township  ten  north,  San  Ber- 
nardino base;  thence  west,  on  said  township  line,  to  the  Santa  Maria  river; 
thence  down  said  river,  and  down  the  creek  which  divides  that  part  of  Guada- 
lupe rancho  known  as  La  Larga  from  that  known  as  Oso  Flacco,  to  a  point  in 
the  Pacific  ocean  opposite  the  mouth  of  said  creek,  forming  northwest  corner; 
thence  southeasterly,  by  the  ocean  shore,  to  the  place  of  beginning;  including 
the  islands  of  Santa  Barliara,  San  Nicolas,  San  Miguel,  Santa  Rosa,  and  Santa 
Cruz. 

Count}-  seat — Santa  Barbara. 

(The  county  of  Santa  Barl)ara  was  divided  and  the  ncAV  county  of  Ventura 
created  out  of  the  eastern  portion  by  the  following  act:] 

VENTURA. 

.\ii  Aft  to  emitf  the-  county  of  Vewturu,  to  estitblish  the  boundaries  tbereof,  and  to  provide 
for  its  urgauizutiou. 

Aiiprovfd,  March  22,  1872;  1871-2,  484. 

W'ulara. 

Section  1.  There  shall  be  farmed  (jut  of  the  eastern  part  of  Santa  Barbara  " 
county  a  new  county,  to  be  called  Ventura. 

rti>ini(lari>'i<. 

Sec.  2.  The  l)oundarics  of  Ventura  county  shall  be  as  follows:  Commencing 
on  the  coast  of  the  Pacific  ocean,  at  the  mouth  of  the  Rincon  creek;  thence  fol- 
lowing up  the  centre  of  said  creek  to  its  source;  thence  due  north  to  the  north- 

502 


COUNTIES.  394G 

era  boundary -line  of  Santa  BarLaia  county;  tbence  in  an  easterly  iliroctiou 
alouf^'  the  said  boundary-line  of  Santa  Barbara  county  to  tbe  northeast  corner 
of  the  same;  thence  southerly  along  the  line  between  the  said  Santa  Barbara 
county  and  Los  Angeles  county  to  the  Pacific  ocean  and  three  miles  therein; 
thence  in  a  northwesterl}'  direction  to  a  point  due  south  of  and  three  miles  dis- 
tant from  the  centre  of  the  mouth  of  Bincon  creek;  thence  north  to  the  point 
of  beginning,  and  including  the  islands  of  Anacapa  and  San  Nicolas. 

County  seat. 

Sec.  3.  The  seat  of  justice  shall  be  at  the  town  of  San  Buenaventura  until 
otherwise  provided  by  law. 

Aiypointrtierd  of  county  judge. 

Sec.  4.  The  governor  of  this  state  shall,  when  this  act  takes  effect,  appoint 
some  suitable  person,  resident  of  Yentura  county,  to  act  as  count}'  judge  of  said 
county,  whose  term  of  office  shall  continue  until  the  first  day  of  January,  one 
thousand  eight  hundred  and  seventy-four,  and  until  his  successor  is  elected  and 
qualified,  and  who  shall  hold  his  office  and  reside  at  the  county  seat.  There 
shall  be  chosen  by  the  qualified  electors  thereof  at  the  judicial  election  to  be 
holden  in  the  year  eighteen  hundred  and  seventy-thi*ee,  and  every  f<nu-  years 
thereafter,  a  county  jvidge  for  Ventura  county,  whose  term  of  office  shall  com- 
mence on  the  first  Monday  of  January  succeeding  his  election,  and  continue 
for  the  term  of  four  years.  Said  county  judge  of  Ventura  county  shall  receive 
a  salary  of  one  thousand  dollars  per  annum,  to  be  paid  quarterly.  Said  county 
judge  shall  hold  the  courts  rec[uired  by  law  to  be  held  by  county  judges. 
There  shall  be  three  regular  terms  of  the  county  coui-t  held  in  each  year,  said 
terms  to  commence  on  the  first  Monday  in  Februaiy,  June,  and  October;  pro- 
vided, however,  the  count}'  judge  may  call  and  hold  si)ecial  terms  of  the 
p)robate  court  whenever  jDublic  necessity  may  require.  Said  county  judge 
shall  discharge  all  the  duties  required  by  law  of  county  judges  in  this  state. 

Election  of  county  officers. 

Sec.  5.  There  shall  be  an  election  held  in  the  county  of  Ventura  within  sixty 
days  from  the  time  of  the  first  meeting  of  the  commissioners.  There  shall  be 
chosen  at  said  election,  by  the  ciualified  electors  of  said  county,  one  district 
attorney;  one  county  clerk,  who  shall  be  ex  officio  auditor,  recorder,  and  clerk 
of  the  board  of  supervisors,  and  ex  officio  clerk  of  the  county,  probate,  and  dis- 
trict courts;  one  county  superintendent  of  public  schools;  one  sheriff,  who 
shall  be  ex  officio  county  tax  collector;  one  county  assessor;  one  county  treas- 
urer; one  county  surveyor;  one  county  coroner,  who  shall  be  ex  officio  public 
administrator.  Said  county  officers  shall  hold  their  respective  offices  until  the 
first  Monday  in  March,  a.  d.  eighteen  hundred  and  seventy-four,  and  until  their 
successors  are  elected  and  qualified.  There  shall  be  chosen  at  said  election,  by 
the  qualified  electors  thereof,  one  supervisor  for  each  suiiervisor  district  in  said 
county,  who  shall  hold  their  offices  as  follow^s:  District  number  one,  until  the 
first  day  of  January,  a.  n.  eighteen  hundred  and  seventj^-three;  district  number 
two,  until  the  first  day  of  January,  a.  n.  eighteen  hundred  and  seventy-four; 
and  district  number  three,  until  the  first  day  of  January,  a.  d.  eighteen  hun- 
dred and  seventy-five;  provided,  that  all  supen-isors  duly  elected  and  qunlilied 
supervisors  of  Santa  Barbara  county,  residents  of  Ventura  county,  shall  hold 
their  office  for  the  term  provided  by  law,  upon  having  duly  quaHfied  as  town- 
ship officers  of  Ventura  county.  There  shall  be  chosen  at  said  election,  by  the 
ciualified  electors  thereof,  two  constables  and  two  justices  of  the  peace  for  each 
township;  provided,  however,  that  all  constables  and  justices  elected  at  tl;e 
general  and  judicial  elections  held  in  the  year  a.  d.  eighteen  hundred  and 

503 


394G  POLITICAL  CODE. 

:.eveiity-oue,  residents  of  Yentnra  county,  shall  bold  their  offices  for  the  time 
provided  by  law,  upon  having  duly  qualilied  as  township  officers  of  Ventura 
county  for  the  respective  townships  in  which  they  reside,  as  said  townships 
are  or;^^inized  by  the  action  of  the  board  of  commissioners  provided  for  by  this 
act.  The  term  of  office  of  the  justice  of  the  peace  and  constables  of  Ventura 
county  shall  be  the  same  as  in  other  counties  in  this  state. 

Boa rj  of  com m iss io neis. 

Sec  6.  The  governor  shall,  when  this  act  takes  effect,  appoint  five  persons, 
residents  of  the  proposed  county,  who  shall  be  and  constitute  a  board  of  com- 
missionei's  to  perfect  the  organization  of  the  said  county  of  Ventura,  a  majority 
of  whom  shall  constitute  a  quorum.  Said  commissioners  shall  meet  in  the  town 
of  San  Buenaventura  within  twenty  days  after  their  appointment,  and  after 
being  duly  sworn  to  faithfully  discharge  their  duties  as  prescribed  by  this  act, 
shall  organize  by  electing  from  their  number  a  president  and  clerk.  They  shall 
then  di\-ide  said  county  into  three  townships,  define  their  boundaries  and  desig- 
nate the  name  of  each.  They  shall  also  divide  said  county,  by  townships,  into 
three  suj^ervisor  districts,  and  number  the  same.  They  shall  also  establish  elec- 
tion precincts,  and  appoint  one  inspector  and  two  judges  of  election  for  each 
precinct  in  said  county.  They  shall  give  thirty  days'  notice,  by  proclamation 
in  some  newspaper  published  in  the  county,  or  if  there  be  no  newspaper  pub- 
lished in  Ventura  county,  then  said  publication  to  be  made  in  some  newspaper 
published  in  the  county  of  Santa  Barbara,  of  the  officers  to  be  elected,  the  pre- 
cincts established;  and  the  officers  of  election  of  each  shall  also  designate  the 
boundaries  of  each  district,  with  their  names  or  numbers;  also,  bounds  and 
number  of  each  supervisor  district.  Said  commissioners  shall,  on  the  second 
Monday  after  said  election,  meet  at  the  county  seat  as  a  board  of  canvassers, 
and  proceed  to  canvass  the  election  returns.  Said  commissioners,  their  presi- 
dent and  clerk,  are  hereb}'  authorized  and  required  to  discharge  the  same  duties 
as  are  now  required  by  law  of  boards  of  supervisors  and  county  clerks  in  the 
counties  in  this  state,  so  far  as  the  same  applies  to  holding  elections,  canvassing 
election  returns  and  issuing  certificates  of  election.  They  shall  keep  a  full 
record  of  all  their  proceedings,  and  file  the  same  with  the  original  election 
returns  in  the  county  clerk's  office,  as  soon  as  he  shall  have  been  qualified, 
and  thereupon  the  powers  and  duties  of  said  commissioners  shall  cease  and 
terminate. 

Duties  of  ail  per  vianrs. 

Sec  7.  It  shall  be  the  duty  of  the  board  of  suj^ervusors  of  Ventura  county, 
whose  election  is  by  this  act  provided  for,  to  meet  at  the  county  seat  on  the  first 
Monday  of  the  month  subsequent  to  their  election  and  qualification,  and  elect 
the  member  from  district  number  one  chairman.  They  shall  then  allow  such 
\)i:Y  diem  and  mileage  to  the  commissioners  and  officers  of  election  as  they  may 
think  proper  and  just;  and  such  allowance  shall  be  paid  by  a  warrant  drawn  in 
favor  of  each  by  the  proper  officers.  Said  board,  or  majority  of  them,  shall 
then  apjtoint  two  freeholders,  residents  of  Ventura  county,  to  act  as  a  board  of 
coriimissioners,  whose  duty  it  shall  be  to  meet  a  like  number  of  commissioners, 
upp(jinted  by  the  lioard  of  siq)ervisors  of  Santa  Barbara  county,  at  a  time  and 
l»lace  agreed  upon.  Siich  joint  commissioners  shall  then  organize  by  aj^point- 
ing  from  their  nnniber  a  president  and  secretary,  and  shall  immediately  proceed 
to  deteniijjie  the  indebtedness  of  said  county  at  the  time  when  this  act  takes 
effect.  After  a.scertuiuing  the  total  amount  of  indebtedness,  they  shall  ascertain 
the  total  market  value  of  the  assets  belonging  to  the  county  under  considera- 
tion. Tljey  shall  also  ascertain  the  assessed  value  under  the  assessment  of 
eighteen  hundred  and  seventy-one  of  the  property  in  the  territory  hereby  set 

504 


COUNTIES.  349G 

apart  to  form  Ventura  county.  Then,  after  deducting  the  total  vahie  of  assets 
from  the  total  amount  of  indebtedness,  so  as  to  ascertain  the  actual  imlebted- 
ness,  the  proportion  due  from  the  count}'  of  Ventura  shall  he  ascertained  as 
follows:  as  the  total  assessed  value  of  property  in  the  territory  taken  from  Santa 
Barbara  county  to  form  Ventura  county  is  to  the  total  assessed  value  of  said 
count}',  so  shall  be  the  proportion  of  the  actual  indebtedness  of  Ventura  county 
to  Santa  Barbara  county;  and  when  so  ascertained  said  commissioners  shall 
certify  to  their  respective  boards  of  supervisors  such  amount.  The  board  of 
supervisors  of  Ventura  county  shall  then  cause  to  be  issued  the  bonds  of  Ven- 
tura county,  payable  in  five  years  from  the  organization  of  said  county,  to  the 
county  of  Santa  Barbara,  for  such  sum  as  the  commissioners  certify  to  be  due, 
bearing  the  same  rate  of  interest  as  the  county  of  Santa  Barbara  is  now  i)aying 
on  such  debt.  Said  board  of  supervisors  shall  procure  and  provide  a  suitable 
place  or  places  to  be  used  as  a  court-house  and  jail,  and  for  the  accommodation 
of  the  various  county  officers.  They  shall  then,  in  accordance  with  the  general 
laws  governing  boards  of  supervisors,  levy  state  and  county  taxes;  provided, 
that  for  the  general  fund  the}'  shall  have  power  to  levy  not  exceeding  eighty 
cents  on  each  one  hundred  dollars  of  taxable  property  in  said  county.  They 
shall  also  levy  a  tax  of  ten  cents  upon  each  one  hundi'ed  dollars  of  taxable 
property  in  said  county,  which  shall  be  collected  as  other  state  and  county  taxes 
are  collected;  and  when  so  collected  the  same  shall  be  set  apart  pro  rata  as  a 
sinking  fund  to  liquidate  the  debt  due  from  Ventura  county  to  the  county  of 
Santa  Barbara,  affected  by  the  creation  of  Ventura  county;  and  when  there  shall 
be  five  hundred  dollars  or  more  placed  to  the  credit  of  said  county  of  Santa 
Barbara  it  shall  be  the  duty  of  the  board  of  supervisors  of  Ventura  county  to 
draw  upon  their  own  order  such  sum  and  purchase  the  warrants  of  said  county 
of  Santa  Barbara;  and  upon  j:)resentation  to  the  treasurer  of  the  county  of  Santa 
Barbara  he  shall  surrender  a  like  amount  of  Ventura  county  bonds;  said  bonds 
shall  then  be  canceled  and  on  their  face  countersigned  by  the  chairman  of  the 
board  of  supervisors  and  filed  in  the  clerk's  office.  Said  board  of  supervisors 
shall  exercise  such  other  powers  and  duties  as  are  conferred  by  the  general  laws 
on  boards  of  supervisors  in  the  counties  of  this  state.  The  \e\\  of  taxes  for 
the  first  year  shall  be  as  effective  as  if  levied  at  the  time  provided  in  the  general 
law. 

Transfer  of  actions. 

Sec.  8.  All  civil  actions,  or  proceedings  in  the  nature  of  actions,  whether 
original  or  upon  ajopeal,  civil  or  criminal,  which  shall  be  pending  in  the  district 
court,  county  court,  or  probate  court,  in  the  county  of  Santa  Barbara,  at  the 
time  of  the  organization  of  Ventura  county,  in  which  the  defendants  are  resi- 
dents of  Ventura  county,  shall  be  removed  for  trial  and  final  determination  to 
the  proper  courts  of  Ventura  county  on  motion  of  any  party  interested;  pro- 
vided, that  all  actions  commenced  for  the  collection  of  taxes  and  licenses  shall 
not  be  removed  from  the  courts  of  Santa  Barbara  county;  provided,  further, 
that  in  all  criminal  causes,  where  the  offense  w^as  committed  within  the  present 
limits  of  Ventura  county,  upon  the  application  of  the  district  attorney  of  Ven- 
tura county,  said  causes  shall  be  removed  to  Ventura  county. 

Transcript  of  records. 

Sec.  9.  All  residents  or  i^roperty  holders  of  the  county  of  Ventura,  upon 
appHcation  to  the  county  recorder  of  the  county  of  Santa  Barbara,  and  upon 
the  payment  of  the  fees  required  by  law,  shall  be  entitled  to  receive  a  transcript 
of  the  record,  duly  attested,  of  any  property  situated  in  the  county  of  Ventura, 
and  recorded  in  his  office;  and  upon  presentation  of  said  transcript  to  the 
county  recorder  of  Ventura  county,  and  upon  the  payment  of  the  fees  required 

505 


394G  POLITICAL  CODE. 

bv  law,  said  county  recorder  shall  record  the  same,  and  said  record  shall  have 
tiie  full  force  and  effect  of  the  ori<i-inal  record;  jn-ovided,  however,  the  board  of 
supervisors  of  Ventura  county  shall,  within  two  years,  procure  a  suitable  set  of 
books,  and  make  such  arraugements  as  they  may  agree  upon  Avith  the  county 
recorder  of  Santa  Barbara  county  for  transcribing  therein  all  necessary  records, 
properly  certified;  said  records  to  have  the  same  effect  and  force  of  the  original 
records;  provided,  that  the  expense  of  such  records  shall  not  exceed  the  sum 
of  four  thousand  dollars. 

Seuaforial  crnd  judicial  district. 

Sec.  10.  The  county  of  Ventura  shall  be  attached  to  and  form  a  part  of  the 
third  senatorial  district,  and  for  judicial  purjjoses,  shall  be  attached  to  and 
form  a  part  of  the  first  judicial  district.  The  terms  of  the  distiict  court  shall 
be  held  in  and  for  the  county  of  Ventura  on  the  first  Monday  of  March,  July, 
and  November  of  each  year. 

Election  and  bonds  of  officers. 

Sec.  11.  The  county  officers  of  Ventura  county  shall,  except  as  otherwise 
provided  by  this  act,  be  elected  at  the  same  time  as  the  county  officers  in  other 
counties  of  this  state,  and  shall  hold  their  offices  for  the  term  fixed  by  law. 
They  shall  gfive  bonds  for  the  faithful  discharge  of  their  duties,  to  be  approved 
by  the  county  judge,  in  the  following  sums:  sheriff,  in  the  sum  of  six  thousand 
dollars;  as  ex  officio  county  tax  collector,  in  the  sum  of  fourteen  thousand  dol- 
lai-s;  the  county  clerk,  and  ex  officio  the  recorder  and  auditor,  in  the  sum  of 
five  thousand  dollars;  the  assessor,  in  the  sum  of  five  thousand  dollars;  the 
county  treasurer,  in  the  sum  of  twenty  thousand  dollars;  the  county  surveyor, 
in  the  sum  of  two  thousand  dollars;  the  coroner  and  ex  officio  public  adminis- 
trator, in  the  sum  of  five  thousand  dollars.  The  supervisors  of  Ventura  county 
shall  provide  for  the  election  of  their  successors,  whose  term  of  office  shall  be 
three  years. 

Duties  of  officers. 

Sec.  12.  All  officers  provided  for  by  this  act  shall  perform  duties  as  required 
by  the  general  laws  of  the  state,  unless  otherwise  provided  by  this  act. 
Salaries  of  snpervisoj's. 

Sec.  13.  The  supervisors  of  Ventura  county  shall  receive  for  their  services 
four  dollars  per  day,  and  twenty-five  cents  jier  mile  for  coming  to  the  county 
seat;  provided,  that  for  the  year  a.d.  1873,  and  every  year  thereafter,  the  per 
diem  and  mileage  of  any  one  supervisor  shall  not  exceed  the  sum  of  two 
hundred  dollars. 

Salaries  and  fees  of  (fficers. 

Sec,  14.  The  officers  of  Ventura  county  shall  receive  the  following  salaries 
and  fees:  tlje  treasurer  shall  receive  per  annum  the  sum  of  six  hundred  dol- 
lars; the  assessor  shall  receive  per  annum  the  sum  of  six  hundred  dollars;  the 
disti-ict  attorney  the  sum  of  five  hundred  dollars;  the  superintendent  of  imblic 
Hcliools  the  sum  cjf  tliree  hundred  dollars.  The  fees  of  all  other  officers  shall  be 
the  same  as  is  ]ir(>vid('d  for  in  an  act  to  regulate  fees  of  office,  approved  March 
ij,  A.D.  1870,  for  sinjilar  officers  in  the  county  of  Santa  Barbara. 
Notaries  pnljlic. 

Sec.  15.  Ventura  county  shall  be  entitled  to  five  notaries  public,  as  provided 
for  by  law. 

School  sujjerintendeul. 

Sec.  10.  The  superintendent  of  public  schools  of  the  county  of  Santa  Bar- 
bara sliall  furnish  the  superintendent  of  public  schools  of  Ventura  county  a 
certified  copy  of  the  last  census  lists  of  the- different  school  districts  in  the  terri- 

506 


COUNTIES.  394G-3948 

toiy  set  apart  to  form  Ventura  county,  and  shall  dra^v  liis  -wan-ant  on  the  treas- 
urer of  Santa  Barbara   county  in  favor  of  the  superintendent  of  schools  of 
Ventura  count}-  for  all  money  that  is  or  may  be  due  by  apportionment,  or  other- 
wise, to  the  different  districts  (school)  of  Ventura  county. 
DeUiiqueni  taxes. 

Sec.  17.  All  delinquent  taxes  due  the  county  of  Santa  Barbara  at  the  time 
this  act  takes  effect,  from  the  persons  or  jiroperty  in  Ventura  county,  shall  be 
paid  to  and  collected  by  the  proper  officers  of  Ventura  county,  and  the  auditcn* 
of  Santa  Barbara  county  shall  certify  such  delinquent  taxes  and  tax  list  in 
duplicate  to  the  collector  and  auditor  respectively  of  Ventura  county;  they 
shall  be  collected  by  the  officers  of  Ventura  county  in  the  same  manner  as  de- 
linquent taxes  are  collected  in  the  other  counties  of  the  state. 
Bonds. 

Sec.  18.  The  suj)ervisors  may  issue  Ventura  county  bonds  in  a  sum  not  to 
exceed  in  the  aggregate  twenty  thousand  dollars,  bearing  interest  not  to  exceed 
ten  per  cent,  jier  annum,  paj^able  in  ten  years  from  the  date  of  their  issuance; 
the  principal  and  interest  of  said  bonds  to  be  paid  in  the  gold  coin  of  the 
United  States;  and  may  negotiate  the  same  to  provide  a  cash  fund  to  be  used 
in  the  payment  of  the  first  exjoenses  of  the  county  and  the  salaries  of  its  offi- 
cers. After  the  issuance  of  said  bonds,  no  debt  shall  be  created  by  the  county 
of  Ventura  in  excess  of  the  amount  of  money  in  the  treasuiy  of  said  county. 

Sec.  19.  All  acts  and  parts  of  acts,  so  far  as  they  conflict  with  the  provisions 
of  this  act,  are  hereby  repealed. 

Sec.  20.  This  act  shall  take  effect  and  be  in  force  from  and  after  the  first  day 
of  January,  1873. 

SAN    LUIS    OBISPO. 

3947.  San  Luis  Obispo. 

Sec.  3947.  Beginning  in  Pacific  ocean,  at  northwestern  corner  of  Santa  Bar- 
bara, as  established  in  section  394G;  thence  easterly,  on  the  northern  line  of 
Santa  Barbara,  up  the  Santa  Maria  river,  to  intersection  of  southern  line  of 
township,  ten  noi-th,  San  Bernardino  base;  thence  east  on  said  line  to  point  on 
summit  of  coast  range,  forming  the  southeast  corner,  also  northeast  corner  of 
Santa  Barbara;  thence  northwesterly  on  summit  line,  being  western  line  of 
Kern,  to  its  intersection  with  sixth  standard  south.  Mount  Diablo  base,  being 
the  common  corner  of  Tulare,  Kern,  Monterey,  and  San  Luis  Obispo;  thence 
west  on  said  standard  line  and  extension  thereof  to  the  Pacific  ocean ;  thence 
southerly  along  the  shore  to  the  place  of  beginning. 

County  seat — San  Luis  Obispo. 

montekey. 

3948.  Monterey. 

Sec  3948.  Beginning  in  Pacific  ocean,  at  southwest  corner  of  Santa  Cruz,  as 
established  in  section  3949;  thence  west  to  the  mouth  of  Pajaro  river,  on  the 
bay  of  Monterey;  thence  up  said  stream  to  its  source,  the  small  lake  San 
Felipe;  thence  along  the  northern  and  w^estern  banks  of  said  lake  to  the  creek 
San  Felipe;  thence  east  to  the  summit  line  of  the  coast  range,  forming  northeast- 
ern corner;  thence  southeasterly  along  the  summit  of  the  coast  range  to  the  sixth 
standard  south.  Mount  Diablo  base,  being  the  common  corner  of  San  Luis 
Obispo,  Kern,  Tulare,  and  Monterey;  thence  following  the  northern  boundaiy 
of  San  Luis  Obispo  county,  on  said  standard  line  and  extension  thereof,  to  the 
Pacific  ocean;  thence  along  the  shore  northerly  to  the  place  of  beginning. 

Count}'  seat — Monterey. 

[The  county  of  Monterey  was  divided  and  the  new  county  of  San  Benito 
created  out  of  the  eastern  portion  by  the  following  act:] 

507 


3948  •  POLITICAL  CODE. 

SAN    BEXITO. 
An  Act  to  create  the  county  of  San  Benito,  to  establish   the  boundaries  thereof  and  to  pro- 
vide for  its  organization. 

Approved,  February  12,  1874;  1873-4,  95. 

San  Benito  county. 

Section-  1.  There  shall  be  formed,  out  of  the  eastern  part  of  Monterey  county, 
a  new  coimty,  to  be  called  San  Benito. 

Boundaries. 

Sec.  2.  The  boundaries  of  San  Benito  county  shall  be  as  follows:  Commenc- 
ing at  a  point  in  the  centre  of  Pajaro  river,  said  point  being  the  northwest  cor- 
ner of  the  Eaucho  las  Arroinitas  y  Agua  Caliente,  and  being  on  the  northern 
boundary-line  of  Monterey  county,  and  running  thence  in  a  southerly  direction 
alang  the  southwest  boundaiy  of  said  rancho  to  the  southwest  corner  thereof; 
theuce  southerly  in  a  direct  line  to  the  northwest  corner  of  the  Rancho  las  Ver- 
gelos;  theuce  southerly  in  a  direct  line  to  the  summit  of  the  Gavilan  range  of 
mountains;  and  thence  southeasterly  along  the  summit  of  said  Gavilan  moun- 
tains to  the  Chalon  peak;  thence  southeasterly  in  a  direct  line  to  the  division 
line  of  the  parts  of  the  San  Lorenzo  Sobrantes  owned  respectively  by  Breen 
and  Dunn;  thence  along  said  dividing  line  of  said  rancho  to  the  southern  bound- 
ary thereof;  thence  due  south  to  the  San  Lorenzo  creek;  thence  southeasterly  up 
said  San  Lorenzo  or  Lewis  creek,  and  up  the  north  fork  thereof,  to  the  summit 
of  the  divide  between  the  waters  of  said  Lewis  creek  and  San  Benito  creek; 
theuce,  following  said  divide  southerly,  to  the  eastern  boundary  of  Monterey 
county,  and  the  summit  of  the  coast  range  of  mountains;  thence  northerly,  fol- 
lowing the  summit  of  said  mountains,  to  the  southern  boundary-line  of  Santa 
Clara  county;  thence  westerly,  following  the  southern  boundary-line  of  Santa 
Clara  county,  to  the  place  of  beginning. 

County  seat. 

Sec  3.  The  seat  of  justice  shall  be  at  the  town  of  Hollister,  until  otherwise 
provided  by  this  act. 

Appointment  of  county  judge — Salary — Terms  of  county  and  probate  courts. 

Sec  4.  The  governor  of  this  state  shall,  when  this  act  takes  effect,  ajipoint 
some  suitable  person,  resident  of  San  Benito  county,  to  act  as  county  judge  of 
said  county,  whose  term  of  office  shall  continue  until  the  first  Monday  of  Jan- 
uary, one  thousand  eight  hundred  and  seventy-six,  and  until  his  successor  is 
elected  and  qualified,  and  who  shall  hold  his  office  and  reside  at  the  county 
seat.  There  shall  be  chosen  by  the  qualified  electors  thereof,  at  the  judicial 
election  to  be  holdeu  in  the  year  eighteen  hundred  and  seventy-five,  and  every 
four  years  thereafter,  a  county  judge  for  San  Benito  county,  whose  term  of 
office  shall  commence  on  the  first  Monday  of  January  succeeding  his  election, 
and  continue  for  the  term  of  four  years.  Said  county  judge  of  San  Benito 
county  shall  receive  a  salary  of  twelve  hundred  dollars  per  annum,  to  be  paid 
montlily.  Said  county  judge  shall  liold  the  courts  required  by  law  to  be  held 
by  county  judges.  There  shall  be  four  regular  terms  of  the  county  court  held  in 
each  year,  said  terms  to  commence  on  the  first  Monday  in  February,  May, 
August,  and  November;  provided,  however,  the  county  judge  may  call  and  hold 
special  terms  of  tlie  jtroljate  court,  whenever  public  necessity  may  require. 
Said  county  judge  shall  discharge  all  the  duties  required  by  law  of  county 
judges  in  this  state. 

Election  and  ofUcrr^. 

Sec  5.  There  shall  be  an  election  held  in  the  county  of  San  Benito  within 
sixty  days  from  the  first  meeting  of  the  commissioners  hereinafter  provided  for. 
There  shall  be  cho.sen  at  said  election,  by  the  qualified  electors  of  said  county, 

608 


COUNTIES.  3948 

one  district  atiovney;  one  county  clerk,  who  shall  be  ex  officio  auditor,  recorder, 
and  clerk  of  the  board  of  supervisors,  and  ex  officio  clerk  of  the  county,  pro- 
bate, and  district  courts;  one  county  superintendent  of  public  schools;  one 
sheriff,  who  shall  be  ex  officio  county  tax  collector;  one  county  assessor;  one 
county  treasurer;  one  county  surveyor;  one  county  coroner,  who  shall  be  ex 
officio  public  administrator.  Said  county  officers  shall  hold  their  respective 
offices  until  the  first  Monday  in  March,  a.  d.  eighteen  hundred  and  seventy-six, 
and  until  their  successors  are  elected  and  qualified.  There  shall  be  chosen  at 
the  same  election,  by  the  qualified  electors  thereof,  one  supervisor  for  each 
supervisor  district  in  said  county,  who  shall  hold  their  offices  as  follows:  Dis- 
trict number  one,  until  the  first  Monday  in  January,  a.  d.  eighteen  hundred  and 
seventy-five;  district  number  two,  until  the  first  Monday  in  January,  a.  d 
eighteen  hundred  and  seventy-six;  and  district  number  three,  until  the  first 
Monday  in  January,  a.  d.  eighteen  hundred  and  seventy-seven.  There  shall  be 
chosen  at  said  election,  by  the  qualified  electors  thereof,  two  constables  for  each 
township,  and  one  road  overseer  for  each  road  district  in  said  county;  provided, 
that  all  the  justices  of  the  peace,  elected  at  the  judicial  election  held  in  the  year 
A.  D.  eighteen  hundred  and  seventy-three,  residents  of  San  Benito  county,  shall 
hold  their  offices  for  the  time  provided  by  law,  upon  having  duly  qualified  as 
justices  of  the  peace  of  San  Benito  county  for  the  respective  township  in  which 
they  severally  reside,  as  said  townships  are  organized  by  the  action  of  the  board 
of  commissioners  jorovided  for  by  this  act.  The  terms  of  offices  of  justices  of 
the  peace,  constables,  and  road  overseers  of  San  Benito  county,  shall  be  the 
same  as  in  other  counties  of  this  state.  At  said  election  shall  also  be  submitted 
to  the  qualified  electors  the  permanent  location  of  the  county  seat  of  said  San 
Benito  county,  and  the  place  receiving  the  highest  number  of  votes  therefor 
shall  be  declared  by  the  commissioners  the  permanent  county  seat  of  said 
county. 

Commissioners  and  duties. 

Sec.  6.  The  governor  shall,  when  this  act  takes  effect,  appoint  five  persons, 
residents  of  the  proposed  county,  who  shall  be  and  constitute  a  board  of  com- 
missioners to  perfect  the  organization  of  said  San  Benito  county,  a  majority  of 
whom  shall  constitute  a  quorum.  Said  commissioners  shall  meet  in  the  town 
of  Hollister,  within  twenty  days  after  their  appointment,  and  after  being  duly 
sworn  to  faithfully  discharge  their  duties  as  prescribed  by  this  act,  shall  organize, 
by  electing  from  their  number  a  president  and  clerk.  They  shall  then  divide 
said  county  into  townships,  define  their  boundaries,  and  designate  the  names  of 
each.  They  shall  also  divide  said  county  by  townships  into  three  supervisor 
districts,  and  number  the  same.  They  shall  also  establish  election  precincts, 
and  appoint  one  inspector  and  two  judges  of  election  for  each  precinct  in  said 
county.  They  shall  give  thirty  days'  notice,  by  proclamation  in  some  news- 
paper published  in  the  county,  of  the  officers  to  be  elected,  the  precincts  estab- 
lished, the  officers  of  election,  and  shall  designate  the  boundaries  of  each 
district,  with  their  names  and  numbers.  Said  commissioners  shall,  on  the  sec- 
ond Monday  after  said  election,  meet  at  the  county  seat  as  a  board  of  canvass- 
ers, and  proceed  to  canvass  the  election  returns.  Said  commissioners,  their 
president  and  clerk,  are  hereby  aiuthorized  and  required  to  discharge  the  same 
duties  as  are  now  required  by  law  of  boards  of  supervisors  and  county  clerks, 
in  counties  in  this  state,  so  far  as  the  same  applies  to  holding  elections,  can- 
vassing election  returns,  and  issuing  certificates  of  election.  They  shall  keep 
a  full  record  of  all  their  iiroceedings,  and  file  the  same  with  the  original  election 
returns,  in  the  county  clerk's  office,  as  soon  as  he  shall  have  been  qualified, 
and  thereafter  the  powers  and  duties  of  said  commissioners  shall  cease  and 
determine. 

509 


394S  POLITICAL  CODE. 

Supervisors,  their  poicers  and  duties. 

Sec.  7.  It  shall  be  tlie  duty  of  the  board  of  supervisors  of  San  Benito  count}'-, 
whose  election  is  by  this  act  provided  for,  to  meet  at  the  county  seat  on  the  first 
Monday  of  the  month  subsequent  to  their  election  and  qualification,  and  elect 
the  member  from  district  number  one  chairman.  They  shall  then  allow  such 
per  diem  and  mileage  to  the  commissioners  and  officers  o/  election  as  they  may 
think  proper  and  just,  and  such  allowance  shall  be  paid  by  a  warrant  drawn  in 
favor  of  each  by  the  proper  oflicers.  The  board  of  supervisors  shall  procure 
and  provide  a  suitable  building  or  buildings,  to  be  used  as  a  court-house  and 
jail,  and  for  the  accommodation  of  the  various  county  officers;  and  for  such 
purposes,  they  are  hereby  authorized  to  rent,  or  purchase,  or  construct  suitable 
buildings.  And  in  case  of  purcliase  or  construction,  said  board  are  authorized 
to  issue  bonds  of  said  county,  not  exceeding  the  sum  of  twenty  thousand  dol- 
lai-s,  bearing  ten  per  cent,  per  annum  interest,  and  payable  within  such  times  as 
the  board  may  direct,  not  exceeding  fifteen  years  from  the  date  of  issue  thereof; 
and,  provided,  that  said  bonds  shall  not  be  disposed  of  or  sold  on  behalf  of  said 
county  for  a  less  svmi  than  ninety  cents  on  the  par  value  thereof.  The  board 
shall,  in  accordance  with  the  general  laws  governing  boards  of  supervisors,  levy 
state  and  county  taxes;  provided,  that  for  the  general  fund  they  shall  have 
power  to  lev}'  not  exceeding  ninety  cents  on  each  one  hundred  dollars  of  value 
of  taxable  property  in  said  county.  They  may  also  levy  a  tax  not  exceediug  ten 
cents  upon  each  one  hundred  dollars  of  value  of  the  taxable  property  of  said 
county,  which,  when  collected,  shall  be  set  aside  and  known  as  the  "Contingent 
Fund,"  and  which  shall  be  used  exclusively  for  the  payment  of  necessar}''  re- 
pairs upon  county  buildings,  for  the  purchase  of  record  books,  stationery,  fuel, 
and  lights  for  county  offices;  and,  in  case  of  the  purchase  or  construction  of 
county  buildings,  and  the  issue  of  bonds  in  payment  therefor,  then  the  board 
of  supervisors  are  further  authorized  to  make  an  additional  levy,  not  exceeding 
twenty  cents  on  each  one  hundred  dollars  of  value  of  taxable  propei-ty  of  said 
county,  which,  when  collected,  shall  be  set  aside  and  known  as  the  "Building 
Fund,"  and  shall  be  used  only  in  the  redemption  of  bonds  issued  for  the  pur- 
pose of  purchasing  or  constructing  county  buildings  and  paying  yearly  interest 
thereon. 

Actions  removed. 

Sec.  8.  All  actions,  or  proceedings  in  the  nature  of  actions,  whether  original 
or  upon  appeal,  civil  or  criminal,  which  shall  T)e  jaending  in  the  district  court, 
county  court,  or  probate  court,  in  the  county  of  Monterey,  at  the  time  of  the 
organization  of  San  Benito  county,  where  the  defendants  therein  reside  in  said 
Sau  Benito  county,  shall  be  removed  for  trial  and  final  determination  to  the 
proper  courts  of  San  Benito  county,  on  motion  of  any  party  interested;  and, 
provided,  that  all  criminal  causes  where  the  offense  was  committed  within  the 
limits  of  San  Benito  county,  shall,  upon  application  of  the  district  attorney  of 
San  Benito  county,  be  removed  to  San  Benito  county. 

Tranacrijition  of  records. 

Sec.  \).  The  board  of  supervisors  of  San  Benito  county  are  hereby  authorized 
to  contract  with  some  competent  person  for  transcribing  from  the  records  of 
Monterey  county  such  parts  thereof  as  relate  to  property  situated  in  San  Benito 
county,  and  for  such  purpose  shall  provide  suitable  books;  and  said  records, 
when  so  transcribed  and  certified,  shall  have  the  same  force  and  effect  as  such 
original  records.  The  person  so  employed  shall  have  access  to  said  records 
of  Monterey  county  for  said  purpose  of  transcribing  the  same.  The  compen- 
sation for  said  services  shall  be  fixed  and  allowed  by  the  board  of  supervisors 
of  San  Benito  county,  and  paid  out  of  the  general  fund  of  said  county. 

510 


COUNTIES.  3948 

Judicial  district. 

Sec.  10.  The  county  of  San  Benito  shall  be  attached  to  and  form  a  part  of 
the  twentieth  judicial  district. 

Official  bonds. 

Sec.  11.  The  county  ofl&cers  of  San  Benito  county  shall,  except  as  otherwise 
jn'ovided  by  this  act,  be  elected  at  the  same  time  as  county  officers  in  other 
counties  of  this  state,  and  shall  hold  their  offices  for  the  term  fixed  by  law. 
They  shall  give  bonds  for  the  faithful  discharge  of  their  duties,  to  be  approved 
by  the  county  judge,  in  the  following  sums:  the  sheiiff,  in  the  sum  of  eight 
thousand  dollars,  and  as  ex  officio  county  tax  collector,  in  the  sum  of  twenty- 
five  thousand  dollars;  the  county  clerk,  in  the  sum  of  five  thousand  dollars, 
and  as  ex  officio  recorder  and  auditor,  in  the  sum  of  five  thousand  dollars  each; 
the  county  treasurer,  in  the  sum  of  thirty  thousand  dollars;  the  district 
attorney,  in  the  sum  of  four  thousand  dollars;  the  county  surveyor,  in  the  sum 
of  three  thousand  dollars;  the  coroner  and  ex  officio  public  administrator,  in 
the  sum  of  five  thousand  dollars;  each  supervisor,  in  the  sum  of  two  thou- 
sand dollars;  and  each  justice  of  the  peace,  constable,  and  road  overseer,  in  the 
sum  of  two  thousand  dollars.  The  supervisors  of  San  Benito  county  shall 
provide  for  the  election  of  their  own  successors,  whose  term  of  office  shall  be 
three  years. 

Duties. 

Sec.  12.  All  officers  provided  for  by  this  act  shall  perform  duties  as  required 
by  the  general  laws  of  the  state,  unless  otherwise  provided  by  this  act. 

SalaiHes. 

Sec.  13.  The  officers  of  San  Benito  county  shall  receive  the  following  salaries 
and  fees:  the  treasurer  shall  receive,  per  annum,  the  sum  of  one  thousand 
dollars;  the  district  attorney,  the  sum  of  twelve  hundred  dollars;  the  superin- 
tendent of  public  schools,  the  sum  of  five  hundred  dollars;  the  assessor,  the 
sum  of  one  thousand  dollars  per  annum;  and  each  member  of  the  board  of 
supervisors  shall  receive  a  per  diem  of  five  dollars  for  each  day's  services  as  a 
member  of  the  board,  and  twenty-five  cents  per  mile  in  going  to  the  county 
seat  to  attend  the  sessions  of  said  board.  The  fees  and  salaries  of  all  officers, 
except  as  herein  specially  named,  shall  be  the  same  as  now  allowed  said  officers 
in  Monterey  county  for  like  services. 

Notaries. 

Sec.  14.  San  Benito  county  shall  be  entitled  to  five  notaries  pubhc  as  pro- 
vided for  by  law. 

ScJiool  ceiisiis  lists  and  moneys. 

Sec  15.  The  superintendent  of  public  schools  of  the  county  of  Monterey 
shall  furnish  the  superintendent  of  public  schools  of  San  Benito  county  with  a 
certified  copy  of  the  last  school  census  lists  of  the  differeut  school  districts  in 
the  territory  set  apart  to  form  San  Benito  county,  and  shall  draw  his  warrant 
on  the  treasurer  of  Monterey  county  in  favor  of  the  superintendent  of  schools 
of  San  Benito  county,  for  all  money  that  is  or  may  be  due  by  apportionment 
or  otherwise  to  the  different  school  districts  of  San  Benito  county,  aud  the 
auditor  of  Monterey  county  shall  in  like  manner  draw  his  warrant  m  favor  of 
the  auditor  of  San  Benito  county  for  all  money  that  is  or  may  be  due  by 
apportionment  or  otherwise  to  the  different  road  district  funds  in  the  territory 
set  apart  to  form  San  Benito  county,  and  said  money  shall  be  paid  into  the 
treasury  of  San  Benito  county,  and  be  properly  credited  to  the  respective 
districts  in  said  county. 

511 


3948-3950  POLITICAL  CODE. 

Delinquent  iaxes. 

Sec.  1<3.  All  delinquent  taxes  due  to  tlie  county  of  Monterey  at  tbe  time  this 
act  takes  effect,  from  tlie  persons  or  property  in  San  Benito  county,  shall  be 
paid  to  and  collected  by  the  proper  officers  of  San  Benito  county,  and  the  aud- 
itor of  Monterey  county  shall  certify  such  delinquent  taxes  and  tax  lists  in  du- 
plicate to  the  collector  and  auditor  respectively  of  San  Benito  county.  They 
shall  be  collected  by  the  officers  of  San  Benito  county  in  the  same  manner  as 
delinquent  taxes  are  collected  in  other  counties  in  this  state. 

Sec.  17.  All  acts  and  parts  of  acts,  so  far  as  they  conflict  with  the  provisions 
of  this  act,  are  hereby  repealed. 

Sec  18.  This  act  shall  take  effect  and  be  in  force  from  and  after  its  passage. 

Au  Act  siiiiijlemcntiiry  to  the  foregoing  act  of  February  12,  ISli. 
Approved  March  18,  1874;  1873-4,  428. 

[This  act  provided  for  a  board  of  commissioners  to  determine  the  amount  of 
indebtedness  as  between  San  Benito  and  Monterey  counties,  and  for  ways  and 
means  to  pay  the  same  by  the  issue  of  bonds  by  the  county  found  to  be  indebt- 
ed. It  also  provided  for  the  terms  of  the  district,  county  and  probate  coui'ts  in 
Sau  Benito  countv. 

It  was  amended  by  act  of  March  10,  1876;  1875-6,  177,  in  so  far  as  related 
to  the  commissioners,  issue  of  bonds  and  compensation  of  commissioners.] 

SANTA   CRUZ. 

3949.  Santa  Cruz. 

Sec  3949,  Beginning  at  the  south  corner  of  San  Mateo  county,  at  a  point  in 
the  PaciHc  ocean  south  forty -five  degrees  w^est,  three  miles  from  the  intersection 
of  the  east  line  of  raucho  Punta  del  Alio  Nueva  with  said  ocean,  forming  w^est- 
ern  corner;  thence  north,  forty-five  degrees  east,  to  said  j)oint  of  intersection; 
thence  northerly,  following  the  eastern  line  of  said  rancho,  to  its  intersection 
with  the  south  line  of  township  eight  south,  range  four  west,  Mount  Diablo 
base  and  meridian;  tbence  east  to  the  southeast  corner  of  said  township;  thence 
north  to  the  northeast  corner  of  section  twenty-five  of  said  township;  thence 
east  to  the  northeast  corner  of  section  twenty-six,  township  eight  south,  range 
three  west;  thence  north  to  the  summit  of  Santa  Cruz  mountains,  being  west- 
em  line  of  Santa  Clara  county;  thence  southeasterlj^  along  the  summit  of  said 
mountains,  on  the  western  line  of  Santa  Clara,  to  the  Pajaro  river,  forming 
southeast  corner,  on  north  line  of  Monterey;  thence  westerly  along  said 
river,  on  northern  line  of  Monterey,  to  the  bay  of  Monterey,  and  three  miles 
westerly  into  the  ocean,  forming  southwest  corner;  thence  northwesterly  along 
the  shore  to  the  point  of  beginning. 

County  seat — Santa  Cruz. 

SAX   FEAKCISCO   (ciTY   AND   COUNTY). 

3950.  Sri 7 1  Franciaco. 

Sec  3950.  Beginning  at  the  southwest  corner,  being  northwest  corner  of  San 
]^Iateo,  in  Pacific  ocean,  on  the  extension  of  northern  line  of  township  three 
south,  of  Mount  Diablo  base;  thence  northerly  along  the  Pacific  coast  to  its 
point  of  intersection  with  westerly  extension  of  low  water  line  on  northern  side 
of  the  entrance  to  Sun  Francisco  bay,  being  southwest  corner  of  Marin  and 
northwest  corner  of  San  Francisco;  thence  easterly,  through  Point  Bonita  and 
Point  Caballo,  to  the  most  southeastern  point  of  Angel  island,  all  on  the  line 
of  Marin,  as  established  in  section  3957;  thence  northerly,  along  the  easterly 
line  of  Marin,  to  the  northwest  point  of  Golden  rock  (also  known  as  Bed  rock), 
being  a  common  corner  of  Marin,  Contra  Costa,  and  San  Francisco;  thence  due 
southeast  four  and  one  half  miles,  more  or  less,  to  a  point  distant  three  statute 

512 


COUNTIES.  3950-2?53 

miles  from  the  natural  high  water  mark  on  tlie  eastei-u  shore  of  San  Francisco 
bay,  being  a  common  corner  of  Contra  Costa,  Alameda,  and  San  Francisco; 
thence  southeasterly,  in  a  direct  line,  to  a  point  three  miles  from  said  eastern 
shore,  and  on  the  line  first-named  (considered  as  extending  across  said  bay); 
and  thence  west  along  said  first-named  line  to  the  place  of  beginning.  The 
islands  known  as  the  Farralones  shall  be  attached  to  and  be  a  jDart  of  said  city 
and  county. 

SAN    MATEO. 

3951.  San  Mateo. 

Sec.  3951.  Beginning  at  the  southwest  corner,  being  west  corner  of  Santa 
Cruz  county,  as  established  in  section  3949;  thence  on  northwestern  line  of 
Santa  Cruz,  as  established  in  said  section,  to  the  southwestern  line  of  Santa 
Clara,  being  the  summit  line  of  the  Santa  Cruz  mountains;  thence  northwest- 
erly, by  said  summit  line,  to  the  source  of  San  Francisqiiito  creek;  thence  down 
the  south  branch  thereof,  and  down  said  creek  to  its  mouth;  thence  to  a  point 
in  the  middle  of  San  Francisco  bay,  opposite  said  mouth,  forming  common 
corner  of  San  Mateo,  Santa  Clara,  and  Alameda;  thence  in  a  direct  line  to  the 
southeast  corner  of  San  Francisco  city  and  county,  as  established  in  section 
3950;  thence  due  west,  on  southern  line  of  San  Francisco  city  and  county,  to 
the  southwest  corner  thereof;  thence  southerly,  along  the  ocean  shore,  to  the 
point  of  beginning. 

County  seat — Redwood  city. 

SANTA    CLAKA. 

3952.  Santa  Clara. 

Sec.  3952.  Beginning  at  a  point  oiDposite  the  mouth  of  San  Francisquito 
creek,  being  common  corner  of  Alameda,  San  Mateo,  and  Santa  Clara,  as 
established  in  section  3951;  thence  easterly,  to  a  point  at  the  head  of  a  slough, 
which  is  an  arm  of  the  bay  of  San  Francisco,  at  its  head,  making  into  the  main 
land  in  front  of  the  Gegara  ranches;  thence  easterly,  to  a  lone  sycamore  tree 
that  stands  in  a  ravine  between  the  dwellings  of  Fluhencia  and  Valentine 
Gregara;  thence  easterly,  up  said  ravine,  to  the  top  of  the  mountains,  and  as 
surveyed  by  Horace  A.  Higley,  and  shown  on  survey  and  map  of  Alameda 
county,  eighteen  hundred  and  fifty-seven;  thefice  on  a  direct  line  easterly,  to 
the  common  corner  of  San  Joaquin,  Stanislaus,  Alameda,  and  Santa  Clara,  on 
the  summit  of  the  coast  range,  as  established  in  section  3932;  thence  south- 
easterly, following  the  summit  of  the  coast  range,  to  the  northeast  corner  of 
Monterey  county,  as  established  in  section  3948;  thence  westerly,  following  the 
northern  boundary  of  Monterey  county  to  the  southeast  corner  of  Santa  Cruz 
county,  as  established  in  section  3949;  thence  northwesterly,  following  the 
summit  of  the  Santa  Cruz  mountains,  to  the  head  of  San  Francisquito  creek; 
thence  down  said  creek,  to  its  mouth;  thence  in  a  direct  line  to  the  place  of 
beginning. 

County  seat — San  Jose. 

ALAMEDA. 

3953.  Alameda. 

Sec.  3953.  Beginning  at  the  southwest  corner,  being  the  common  corner  of 
San  Mateo,  Santa  Clara  and  Alameda,  as  established  in  section  3951;  thence 
easterly,  on  northerly  line  of  Santa  Clara,  as  established  in  section  3952,  to 
common  corner  of  San  Joaquin,  Stanislaus,  Santa  Clara  and  Alameda,  as  estab- 
lished in  section  3932;  thence  northwesterly,  on  the  west  line  of  San  Joaquin 
county,  to  the  slough  known  as  the  Pescadero,  being  the  west  channel  or  old 
San  Joaquin  river;  thence  westerly,  in  a  straight  line,  until  it  strikes  the  divid- 
ing ridge,  in  the  direction  of  the  house  of  Joze  Harlan,  in  Amador  valley; 
33  513 


3953-3954  POLITICAL  CODE. 

thence  westerly  along  said  ridge,  crossing  the  gulch  one  half  mile  below 
Prince's  mill;  thence  to  and  running  upon  the  dividing  ridge  between  the  red- 
woods known  as  the  San  Antonio  and  Prince's  woods;  thence  along  said  ridge 
to  the  head  of  the  gulch  or  creek  (Cerrito  creek)  that  divides  the  ranches  of  the 
Peraltas  from  the  San  Pablo  ranches;  thence  down  said  gulch  to  its  mouth; 
thence  southwesterly  to  the  common  corner  of  San  Francisco,  Contra  Costa  and 
Alameda,  as  established  by  section  3950;  thence  southerly  to  a  point  in  the  bay 
of  San  Francisco  that  would  intersect  a  line  parallel  with  the  north  line  of  the 
Central  Pacific  railroad  company's  wharf  (as  it  now  is)  if  extended  westerly 
five  hundred  feet  toward  Yerba  Buena  island;  thence  southeasterly  in  a  line 
parallel  with  the  east  line  of  the  city  and  county  of  San  Francisco  (which  is  the 
line  now  dividing  said  city  and  county  from  the  county  of  Alameda)  to  its  inter- 
section with  the  gouth  line  of  said  city  and  county,  as  established  in  section 
3950;  thence  easterly  along  said  last-mentioned  line  to  the  northeast  corner  of 
San  ^lateo;  and  thence  southeasterly  along  the  eastern  line  of  San  Mateo  to  the 
I'lace  of  beginning,  Horace  A.  Higley's  survey  and  maj)  of  Alameda  County, 
1857,  are  declared  to  contain  a  more  particular  description  of  the  line  out  of  the 
bay  of  San  Francisco. 

County  seat,  city  of  Oakland;  provided  that  nothing  in  this  act  contained 
shall  be  construed  to  place  "Yerba  Biiena  island,"  or  any  part  thereof,  outside 
the  limits  of  the  city  and  county^  of  San  Francisco,  but  the  same  shall  be 
deemed  to  be  within  said  city  and  county,  and  the  westerly  boundary-line  of 
the  county  of  Alameda  shall  not  come  within  two  thousand  and  five  hundred 
feet  of  any  part  of  said  island.  [Ajnendment,  cqyproved  March  30,  1874;  Amend- 
inenl6  1873-4,  168;  took  effect  sixtidh  day  aftei-  passage .^"^ 


CONTRA   COSTA. 

3954.  Contra  Costa. 

Skc.  3954.  Beginning  in  bay  of  San  Francisco,  at  the  northwest  point  of  Red 
rock,  being  the  common  corner  of  Marin,  Contra  Costa,  and  San  Francisco,  as 
established  in  section  3950;  thence  up  the  straits  and  bay  of  San  Pablo,  on  eastern 
boundary  of  Marin,  to  point  of  intersection  with  line  bearing  south  twenty-six  and 
one  half  degrees  east,  and  about  six  and  one  quarter  miles  distant  from  southwest 
corner  of  Napa  county,  as  established  in  section  3958,  forming  common  corner 
of  !Mann,  Solano,  Sonoma,  and  Contra  Costa,  as  established  in  section  3955; 
thence  to  the  straits  of  Carquinez;  thence  np  said  straits  and  Suisun  bay,  to  the 
mouth  of  the  San  Joacjuin  river;  thence  up  said  river,  to  the  confluence  of  the 
west  and  main  channels  thereof,  as  laid  down  on  Gibbe's  map;  thence  up  the 
said  west  channel,  to  a  point  about  ten  miles  below  Moore  and  Rhodes'  ranch, 
at  u  bend  where  the  said  west  channel,  running  downward,  takes  a  general 
course  ncjrth,  the  point  being  on  the  westerlj^  line  of  San  Joaquin  county,  and 
forming  tlie  northeast  corner  of  Alameda  and  southeast  corner  of  Contra  Costa; 
tlience  on  the  northern  line  of  Alameda,  as  laid  down  on  Horace  A,  Higley's 
map,  and  as  established  in  section  3953,  to  the  easterly  line  of  San  Francisco 
city  and  county,  as  ostal>lished  in  section  3950;  thence  due  northwest,  along 
said  easterly  line  of  San  Francisco,  four  and  one  half  miles,  more  or  less,  to  the 
])lace  of  beginning. 

County  seat — Martinez. 

(n)  ThonrlKinal  Bfctlon  after  the  words  "down  siiid  i)ln(e  of  beginning.    Horace  A.  Higloy's  survey  and 

KiiMi  t..  llK  iiKiutli,"  i<r(ic<eilfd  ok  follow-:  •' tlicncc  luiip  of  Alimieda  Conntv,  1857,  are  declared  to  <-ont;iin 

^••-►tfTly  t  .  tlic-  i-ui-terly  line  of  San  Fraucihi-o,  as  ehtiib-  a  more  particular  dcBcription  ol  the  line  out  of  the  bay 

'!-hid  In  Hei  tiou  ;j'.t5<);  theuce  south<B«t<rly  along  tlie  of  San  Francisco.     County  seat— San  Leandro." 


xteni  line  of  Ban  FranciHco  and  Hau  Mateo  to  the 


514 


COUNTIES.  3955-31)50 


SONOMA. 

3955.  Sonoma. 

Sec.  3055.  Beginning  at  northwest  corner,  at  a  point  in  tlie  Piu-ific  ocean 
west  of  the  mouth  of  Walhalla  river;  thence  east  to  the  nioiith  of  said  river,  and 
up  the  main  channel  two  miles;  thence  easterly  in  a  direct  line  to  the  most 
northern  and  highest  peak  or  summit  of  the  Redwood  mountains,  immediately 
north  of  Cloverdale  and  Oat  yalley;  thence  east  to  the  western  boundary  of 
Lake  county,  on  the  summit  of  the  Mayacmas  ridge,  forming  northeast  corner; 
thence  southerly  along  the  Mayacmas  mountains,  and  on  the  western  lines  of 
Lake  and  Napa  counties,  to  the  Avesterly  branch  of  lieadwaters  of  Huichica 
creek;  thence  westerly  on  the  line  of  Napa  county  to  the  top  of  the  main  ridge 
that  divides  the  Huichica  valley  from  the  Sonoma  valley;  thence  southerly 
along  the  said  dividing  ridge  to  the  tule  bordering  on  San  Pablo  bay;  tlience 
southerly  to  the  centre  of  Huichica  creek;  thence  down  said  creek  to  its  mouth, 
which  is  the  southwest  corner  of  NajDa;  thence  on  the  line  of  Solano  south, 
twenty-six  and  one  half  degrees  east,  about  six  and  one  quarter  miles  distant 
from  the  mouth  of  Huichica  creek,  to  the  point  of  intersection  with  the  westerly 
line  of  Contra  Costa  county,  forming  common  corner  of  Marin,  Solano,  Contra 
Costa,  and  Sonoma,  as  described  in  section  3954;  thence  following  the  northern 
boundary  of  Marin  westerly  to  the  mouth  of  Petaluma  creek;  thence  up  said 
creek  to  the  mouth  of  San  Antonio  creek;  thence  up  said  San  Antonio  creek  to 
its  head;  thence  in  a  direct  line  to  the  head  of  the  Estero  Americano,  on  the 
line  surveyed  and  established  by  William  Mock,  under  the  direction  of  the 
survej'or-general,  in  the  year  eighteen  hundred  and  fifty-six;  thence  down  said 
Estero  Americano  to  its  mouth;  thence  due  west  three  miles  to  a  point  in  the 
Pacific  ocean;  thence  northwesterly  by  ocean  shore  to  the  point  of  beginning. 

County  seat — Santa  Rosa. 


SOLANO. 

3956.  Solano. 

Sec.  3956.  Beginning  at  southwest  corner,  in  San  Pablo  ba}',  at  common 
corner  of  Contra  Costa,  Sonoma,  Marin,  and  Solano,  as  established  in  section 
3954;  thence  north,  twenty-six  and  one  half  degrees  west,  about  six  and  one 
quarter  miles  on  the  western  line  of  Sonoma,  as  established  in  section  3955,  to 
the  southwest  corner  of  Napa,  at  the  njouth  of  the  Huichica  creek;  thence  east, 
on  southern  line  of  Napa,  to  the  southeast  corner  thereof,  as  established  in 
section  3958;  thence  north,  on  line  of  Napa,  as  established  in  said  section,  to 
the  first  standard  north;  thence  east,  along  said  standard,  on  said  Napa  line,  to 
the  summit  of  Vaca  mountains;  thence  northerly,  on  said  summit  and  Napa 
line,  to  Devil's  Grate,  on  Putah  creek,  Avhich  point  forms  the  northwest  corner 
of  Solano  and  southwest  corner  of  Yolo;  thence  easterly,  on  line  of  Yolo,  down 
said  creek  and  old  bed  thereof,  to  its  intersection  witli  western  line  of  range 
three  east,  Mount  Diablo  meridian,  forming  the  northeast  corner  of  Solano, 
with  exterior  angle  in  Yolo;  thence  south,  along  line  of  Yolo,  on  said  range 
line,  two  and  seven  tenths  miles,  to  the  north  line  of  township  seven  north, 
Mount  Diablo  base;  thence  east,  nine  and  seventy-two  one  hundredths  chains, 
to  northeast  corner  of  said  township;  thence  south,  to  the  first  standard  north, 
Mount  Diablo  base;  thence  east,  on  said  standard  line,  to  the  centre  of  Sutter 
slough;  thence  down  said  slough  to  Merritt  slough,  down  Merritt  slough  to  the 
Sacramento  river,  down  the  Sacramento  river  about  thirteen  miles  to  Suisun 
bay;  thence  down  the  bay,  along  the  centre  of  the  main  ship  channel,  in  a 
westerly  course,  about  eighteen  miles,  to  the  straits  of  Carquinez;  thence  down 
the  middle  of  said  straits,  and  down  San  Pablo  bay,  to  the  place  of  beginning. 

515 


395G-3958  POLITICAL  CODE, 

All  these  courses  and  lines  being  as  shown  by  map  and  notes  of  William  Wayne 
Fitch  and  E.  H.  Marshall,  surveyor  and  deputy  surveyor  of  Solano  county. 
County  seat — Fairfield. 

An  Act  to  locate  the  coiuity  sent  of  Solano  county. 

Approved  March  28,  187i;  1873-4,  783. 

'  nuuly  seaf. 

SEcnoN  1.  The  county  seat  of  Solano  county  shall  be  at  Fairfield,  in  said 
county. 

Rt'iiwval. 

Sec.  2.  The  board  of  supervisors  of  Solano  county,  -svithin  twenty  days  from 
the  passage  of  this  act,  shall  cause  the  archives,  county  records,  books,  maps, 
papers,  furniture,  and  all  other  movable  personal  property  belonging  to  said 
county,  to  be  removed  to  the  county  seat  established  by  this  act;  and  for  the 
purjiose  of  executing  this  provision,  a  special  meeting  of  said  board  shall  be 
called  in  the  manner  prescribed  by  law. 

Sec  3.  All  acts  or  jiarts  of  acts  in  conflict  herewith  are  hereby  repealed. 

Sec  4.  This  act  shall  take  effect  and  be  in  force  from  and  after  its  passage. 

MARIN. 

3957.  Jlarhi. 

Sec.  3957.  Beginning  in  the  Pacific  ocean,  at  southwestern  corner  of  Sonoma; 
thence  southeastei'ly  along  southern  line  of  Sonoma,  as  established  in  section 
:!it.55,  to  the  mouth  of  Petaluma  creek;  thence  to  common  corner  of  Marin, 
Sonoma,  Contra  Costa,  and  Solano,  in  San  Pablo  bay,  as  established  in  section 
;1955;  thence  southerl}'  along  the  western  boundaiy  of  Contra  Costa,  in  the 
bay  of  San  Pablo,  to  the  middle  of  the  straits  of  San  Pablo;  thence  southerl}', 
ill  a  direct  line,  to  Invincible  rock,  in  the  bay  of  San  Francisco,  near  the  en- 
trance of  the  straits  of  San  Pablo;  thence,  in  a  direct  line,  to  northwestern 
point  of  Red  rock;  thence  southerly  to  the  extreme  southeasterly  point  of 
Angel  island;  thence  southwesterly  to  the  extreme  end  of  Point  Cavallo  at  low 
water  mark;  thence  on  the  line  of  low  water  mark  along  the  northern  shore  of 
the  hay  to  Point  Bonita,  and  three  miles  into  the  Pacific  ocean,  to  the  north- 
western corner  of  San  Francisco,  as  established  in  section  3950;  thence  north- 
westerly by  ocean  shore  to  the  place  of  beginning. 

County  seat — San  Rafael. 

NAPA. 

3958.  Napa. 

Si:c.  3958.  Beginning  at  southwestern  corner,  at  a  point  in  Huichica  creek 
whore  the  said  creek  empties  into  San  Pablo  bay;  thence  east  to  the  mountains 
ilividing  Najia  valley  from  Suisun  valley,  forming  southeastern  corner;  thence 
northerly  along  the  summit  line  of  said  mountains  to  its  intersection  with  the 
first  stuudurd  north,  Mount  Diablo  base,  marked  by  a  rock  monument  erected 
l.y  Kalpli  Norris;  thence  east  along  said  standard  line  seven  and  three  fourth 
miles  to  Vaca  mountains,  which  divide  the  Yaca  and  Suisun  valleys;  thence 
northerly  along  t lie  main  ridge  of  said  Yaca  mountains  to  Putah  creek,  at  a 
jioint  culled  the  Devil's  Gate;  thence  northerly  across  said  creek  to  and  along 
the  mountains  dividing  Benyessa  valley  from  Sacramento  valley  to  the  south- 
east corner  of  Lake;  county  on  the  western  line  of  Yolo;  thence  westerly  along 
the  southern  line  of  Lake,  as  established  in  section  3917,  to  its  intersection  with 
the  eastern  line  of  Sonoma;  thence  southeasterly  on  said  line  of  Sonoma  to  the 
western  branch  of  the  headwaters  of  the  Huichica  creek;  thence  westerly  to  the 
main  ridge  that  divides  the  Huichica  valley  from  the  Sonoma  valley;  thence 
southerly  along  the  said  dividing  ndge  to  the  tule  bordering  on  San  Pablo  bay; 

51G 


COUNTIES.  3958-31)72 

thence  southerly  to  the   centre  of  tlie  Huichica  creek;  thence  down  suiJ  creek 
to  its  mouth,  the  phice  of  beginning. 

County  seat— Napa  city. 

An  Act  to  defiue  the  northern  boundary-line  of  Napa  count}',  adjoining  Luke  and  Yolo 
counties. 

Approved  March  8,  1872;  1871-2,  305. 

Description  of  boundary-line. 

Section  1.  The  northern  boundary -line  of  Napa  and  the  southeasterly  bound- 
ary-line of  Lake  counties  shall  commence  at  the  highest  jioint  of  the  Mount  St. 
Helena;  thence  running  in  an  easterly  direction  along  the  present  boundaiy- 
line  between  said  counties  to  the  Buttes  Canon  road;  thence  northeasterly  in  a 
direct  line  to  the  junction  of  Jericho  and  Putah  creeks;  thence  up  Jericho  creek 
to  the  junction  of  Hunting  creek,  in  Jericho  valley;  thence  up  Hunting  creek 
to  a  lai-ge  pile  of  rocks  on  the  southeasterly  side  of  the  county  road,  at  the  lower 
and  most  easterly  end  of  Hunting  valley;  thence  in  a  straight  line  in  the  direc- 
tion of  the  intersection  of  Bear  and  Cache  creeks  to  the  county  line  of  Yolo 
county;  thence  along  the  line  of  Yolo  county  in  a  southeasterly  direction  to  the 
present  county  line  dividing  Yolo  and  Napa  counties. ' 

Payment  of  claim  of  Lake  county. 

Sec.  2.  The  board  of  supervisors  of  Napa  county  shall  order  paid  the  claim 
of  Lake  county  for  the  sum  of  thirty-five  hundred  dollars,  and  the  auditor  of 
said  county  of  Napa  shall  draw  a  warrant  for  the  same  on  the  treasurer  of  the 
said  county,  payable  from  the  general  fund,  and  the  treasurer  of  Napa  county 
shall  pay  the  same. 

Sec.  3.  All  acts  or  parts  of  acts  in  conflict  with  this  act  are  hereby  repealed. 

Sec.  4'.  This  act  shall  take  effect  from  and  after  its  passage. 


CHAPTEE  II. 

GENERAL   PROVISIONS   RELATING    TO   COUNTIES. 

3369.  Disputed  boundaries,  how  settled. 

Sec.  3969.  All  common  boundaries  and  common  corners  of  counties  not 
adequately  marked  by  natural  objects  or  lines,  or  by  surveys  lawfully  made, 
must  be  definitely  established  by  surveys  jointly  made  by  the  surveyors  of  all 
the  counties  affected  thereby,  and  approved  by  the  boards  of  supervisors  of  such 
counties,  or  by  a  survey  made  by  the  surveyor-general,  on  application  of  the 
board  of  supervisors  of  any  county  affected  thereby. 

3970.  Heport  to  surveyor-general  on  disagreement  of  supervisors. 

Sec.  3970.  If  the  first  mode  is  adopted,  and  the  board  of  supervisors  do  not 
agree  upon  and  finally  approve  the  survey,  each  surv^eyor  must  make  a  report 
to  the  surveyor-general,  with  surveys,  maps,  notes,  and  explanations  touching 
disputed  points. 

3971.  Surveyor-general  to  determine  boundary. 

Sec  3C71.  Upon  such  reports  the  surveyor-general  must  finally  determine 
and  establish  the  common  boundaries  and  corners,  if  he  can  collate  a  satisfac- 
tory description  therefrom.  If  the  reports  are  insufiicient  for  such  purpose, 
he  must  cause  surveys  to  be  made,  and  when  approved  by  him  the  surveys 
establish  such  common  boundaries  and  corners. 

3972.  Approved  surveys  to  be  conclusive. 

Sec.  3972.  All  surveys  finally  approved  under  the  provisions  of  this  chapter 
are  conclusive  ascertainments  of  lines  and  corners  included  therein, 

517 


3973-3981  POLITICAL  CODE. 

3973.   F<riii<-r  .<nirv<ys  valid. 

Sec.  3973.  All  survevs  aiul  maps  of  Lountlary-lines  heretofore  legally  made 
ami  approved,  are  declared  valid,  and  tliey  are  prima  facie  evidence  of  the 
establishraeut  of  such  lines,  except  so  far  as  ihej  are  inconsistent  with  the  pro- 
visions of  this  code.  [Amendment,  approved  March  30,  1874;  Amendments 
1873-4,  54;  took  efect  July  G,  1874.'''> 

3914.  Co>t  of  aurvcy  to  be  apportioned  equally  among  counties  interested. 

Sec.  3974.  The  cost  of  making-  such  surveys  must  be  apportioned  equally 
among  the  counties  interested,  and  the  board  of  supervisors  must  audit  the 
>ame,  and  the  amounts  must  be  paid  out  of  the  general  county  fund. 

3975.    Which  county  cnois  real  property  when  county  is  divided. 

Stc.  3975.  When  a  county  is  divided  or  the  boundary  is  altered,  all  taxes 
levied  before  the  division  was  made  or  boundar}'  changed  must  be  collected 
l>y  the  officers  of  and  belong  to  the  county  in  which  the  territory  was  sitiaated 
liefore  the  division  or  change. 

S976.   Petition  for  change  of  county  seat. 

Sec.  397G.  "VMienever  the  inhabitants  of  am^  county  of  this  state  desire  to 
remove  the  county  seat  of  the  county  from  the  place  where  it  is  fixed  by  law  or 
otherwise,  they  may  jiresent  a  petition  to  the  board  of  supervisors  of  their 
county,  praying  such  removal,  and  that  an  election  be  held  to  determine  to 
what  place  such  removal  must  be  made. 

3977.  Superviso7-s  to  order  election. 

Sec.  3977.  If  the  petition  is  signed  by  qualified  electors  of  the  county,  equal 
in  numbers  to  at  least  three  fifths  of  all  the  votes  cast  in  the  county  at  the  last 
jtrei-eding  general  election,  the  board  must,  within  five  days  after  receiving  such 
jtetition,  order  an  election,  naming  the  day  on  which  it  must  be  held,  not  more 
than  .sixty  nor  less  than  thirty-five  days  from  the  time  of  calling  it,  specifying 
its  object.  \Amendnumt,  apfjroved  March  30,  1874;  Amendments  1873-4,  170  ; 
took  e[feci  July  1,  1874,  in  San  Mateo  county,  and  in  other  counties  from  passage. ^^^ 

o978.  Notice  of  election. 

Sec.  3978.  Notice  of  not  less  than  twenty-five  clays  must  be  given  of  the  elec- 
tion, by  posting  notices  thereof  in  each  election  precinct  within  the  county. 
Amnulment,  ajjjjroved  MarcJi  30,  1874;  Amoidments  1873-4,  55;  took  eD'ect  July 
'>.  1.S74."' 

3979.  Elfction,  hnr  hold  and  conducted. 

Sec.  3979.  The  election  must  be  held  and  conducted  and  the  returns  made  in 
«11  n-spects  in  the  manner  prescribed  by  law  in  regard  to  elections  for  county 
■  pfBccrs. 

3980.  Vot(>r  to  vote  for  place  he  prefers. 

Sec,  3980.  In  voting  on  the  question,  each  elector  must  vote  for  the  place  in 
tlie  county  which  he  prefers  as  the  seat  of  justice,  plainly  designating  it  in  his 
I. allot. 

3981.  Notice  of  rt'sult . 

Sec.  3981,  "When  tlie  returns  have  been  received  and  compared,  and  the  re- 
sults aKcertnined  by  the  board,  if  a  majority  of  all  the  votes  cast  are  in  favor  of 
any  i)articular  ])laco,  the  board  must  give  notice  of  the  result  by  posting  notices 

T'  Thf;  |TU'iiial  Hii  ti|.n  hml  the  word  "  primary  "  iricnt-roll,  fqiuil  in  number  to  at  least  one  half  of  all 

"".LV       '"','""'  .'"'^■•,  *'"■  V'ttB;"  but  tljis  amendment  was  Buperseded  by 

ih]    The    oriyinnl    (set-tlon    inntind    of    the    wordK  the  ami  jidmeut  in  the  text.     See  poHt. 
•'three  fifths"  had  "one  third."     It  \v«H  amended  by  (r)   The  oriKinal  section  required  notice  to  be  Riven 

anotb.r  act  of  March   3fl,  JK7«   (Amrndni.ntH   1873-4,  by"  publication  in  Bonie  newspaper,  if  there  is  one 

r<i).  so  as  to  n  quire  th.- petition  to  b.-  si(;n«d  by  elee.  published  in  the  county,  and  bv  posting  notices  thereof 

tors  "whose  nameb  appear  ou  the  precedlnt;  assesB-  In  at  least  live  public  places  in  the  county." 

518 


GOVERNMENT  OF  COUNTIES.  3981-3985 

thereof  in  all  the  election  precincts   in  the   county.      \Aiiwn(lment,  apvrovCi. 
3Iarch  30,  1874;  Amendments  1873-4,  55;  took  rffed  Jubj  G,  1874.'''> 

3982.  Place  diosen  to  be  coimdj  seal. 

Sec.  3982.  In  the  notice  provided  for  in  section  3981,  the  place  selected  to  be 
the  county  seat  of  the  county  must  be  so  declai'ed  from  a  day  specified  in  the 
notice  not  more  than  ninety  days  after  the  election.  After  the  day  named  in 
the  notice  the  place  chosen  is  the  county  seat  of  the  county. 

3983.  Statement  of  result. 

Skc.  3983.  "Whenever  any  election  has  been  held  as  provided  for  in  the  pre- 
ceding sections  of  this  chapter,  the  statement  made  by  the  board  of  supervisors, 
showing  the  I'esult  thereof,  must  be  deposited' in  the  office  of  the  county  clerk, 
and  whenever  the  board  gives  the  notice  prescribed  by  section  3982,  they  mu.st 
transmit  a  certified  copy  thereof  to  the  secretary  of  state. 

3984.  No  second  election  to  be  held  within  one  year. 

Sec.  3984.  When  the  election  has  been  hel^d  and  a  majority  of  the  votes  are 
cast  for  some  other  place  than  that  fixed  by  law  as  the  former  county  seat,  no 
second  election  for  the  removal  thereof  must  be  held  within  two  years  there- 
after. 

3985.  Subsequent  removal  of  county  seat. 

Sec.  3985.  When  the  county  seat  of  a  county  has  been  once  removed  by  a 
popular  vote  of  the  people  of  the  county,  it  may  be  again  removed  from  time 
to  time  in  the  manner  j^rovided  by  this  chapter;  but  no  election  must  be 
ordered  to  effect  any  such  subsequent  removal,  unless  a  petition  praying  an 
election  is  signed  by  qualified  electors  of  the  county  equal  in  number  to  at  least 
three  fourths  of  all  the  votes  cast  at  the  next  preceding  general  election;  nor 
unless  at  such  election,  when  ordered,  two  thirds  of  all  the  votes  cast  are  in  favor 
of  some  other  place  as  the  county  seat  of  the  county;  and  such  election,  when 
so  ordered,  shall  take  place  at  the  first  general  election  held  thereafter,  nor 
must  two  elections  to  effect  such  removal  be  held  within  four  years.  [Amend- 
ment, approved  February  3,  1876 ;  Amendments  1875-G,  64;  took  effect  from 
passage. ^^'^ 


TITLE  II. 

Sljc  (fioi^rrnmcnt  of  (foiintic^. 

Chapter    I.  Counties  as  Bodies  Corporate 4000 

II,  The  Board  of  Supervisors 4022 

III.  County  Officers 4101 

IV.  Salaries  and  Fees  of  Office "^328 

V.  Other  County  Charges 4343 


(1.f  Sual  s '-.tion-  on  the  great  reai.ter  thereof."  to  rea<l  "  t.vo  thirds  of 

Sec.  3985.  When  the  county  seat  of  a  county  has  been  all  the  qnalitie.l  elertors  whose  n»"»;';.»W';"y  °»  *f i' 

once  removed,  It  may  be  again  removed,  from  time  to  preceding  asseswuent-roll  of  tht  ♦/:y"^\;. "";' '  "^^^  .".f*^.- 

time,  in  the  manner  prescribed  by  this  chapter;  but  tered  on  the  gi-eat  register  tli"^'"!;    „Zntll  B«me 

no  election  miist  be  ordered  to  effect  any  such  subse-  was  superseded  by  an  aineud.neut  adopted  ti   same 

quent  removal,  unless  a  petition  praying  an  election  is  day.  March  ;iO.  1874 ;  -V"""^"'^     L  wA;":^;  ^-    uuUf^la 

Signed  by  one    bird  of  all  the  electors  of  the  county  instead  of  the  above  clause  had  the     ords     q«»l'fied 

registered  on  the  great  register  thereof;  nor  unless,  at  electors  ot   the  county,  equal  in  ^'"'^'jJ^'^^J':'^ 

such  election,  when  ordered,  a  majority  of  all  the  votes  three  fourths^  of  all  the  votes  caet  at  the  next  preted- 

cast  are  in  favor  of  some  other  place  as  the  county  seat  ing  election." 

519 


4000-4006  POLITICAL  CODE. 

CHAPTER  I. 

COUNTIES  AS   BODIES   CORPORATE. 

4000.  Krcnj  county  a  body  corporate. 

Skc.  4000.  Eveiy  county  is  a  body  politic  uiul  corporate,  and  as  such  has  the 
powers  specified  in  this  code,  or  in  special  statutes,  and  such  powers  as  are 
necessarily  implied  from  those  expressed. 

4001.  Powers  of  counties,  how  exercised. 

Sec.  4001.  Its  powers  can  only  be  exercised  by  the  board  of  supervisors,  or 
by  agents  and  oiiicers,  acting  under  their  authority,  or  authority  of  law; 
invivided;  however,  that  whenever  any  board  of  supervisors  shall,  without 
authority  of  law,  order  any  money  paid  as  a  salary,  fees,  or  for  other  purposes, 
and  such  money  shall  have  been  actually  joaid;  or  whenever  the  county  clerk 
or  county  auditor  has  drawn  any  warrant  or  warrants  in  his  own  favor,  or  in 
favor  of  any  other  person,  without  being  authorized  thereto  by  the  board  of 
supervisors,  or  by  the  law,  and' the  same  sball  have  been  jDaid,  the  district 
attorney  of  such  county  is  hereby  empowered,  and  it  is  hereby  made  his 
duty,  to  institute  suit  in  the  name  of  the  county,  against  such  person  or  per- 
.suus,  to  recover  the  money  so  paid,  and  twenty  per  cent,  damage  for  the  use 
thereof;  and  no  order  of  the  board  of  supervisors  therefor  shall  be  necessary 
in  order  to  maintain  such  suit;  and  provided  further,  that  when  the  money 
has  not  been  paid  on  such  orders,  it  is  hereby  made  the  duty  of  the  district 
attorney  of  such  county  to  commence  suit  in  the  name  of  the  county  for 
le.straining  the  payment  of  the  same,  and  no  order  of  the  board  of  supervisors 
therefor  shall  be  necessary  in  order  to  maintain  such  suit,  [Amendment,  ap- 
proved March  24,  1874;  Amendmerds  1873-4,  171;  took  effect  from  passage}"^ 

4002.  Same  and  designation. 

Sec.  4002.  The  name  of  a  county  designated  in  the  law  creating  it  is  its  cor- 
porate name,  and  it  must  be  known  and  designated  thereby  in  all  actions  and 
proceedings  touching  its  corporate  rights,  property,  and  duties. 

4003.  Enumeration  of  powers. 
Sec.  4003.  It  has  power: 

1.  To  sue  and  be  sued; 

2.  To  purchase  and  hold  lands  within  its  limits; 

3.  To  make  such  contracts  and  purchase  and  hold  such  personal  property  as 
may  be  necessaiy  to  the  exercise  of  its  j)owers; 

4.  To  make  such  orders  for  the  disposition  or  use  of  its  property  as  the  inter- 
ests of  its  inlialntants  require; 

5.  To  levy  and  collect  such  taxes  for  purposes  under  its  exclusive  jurisdic- 
tion a.s  are  authorized  by  this  code  or  by  special  statutes. 

4004.  Limitation  ox  povera — Loaning  credit. 

Si..-.  4004.  No  county  must  in  any  manner  loan  or  give  its  credit  to  or  in  aid 
rjf  any  pereon  unless  it  is  expressly  authorized  by  law  so  to  do. 

4005.  Same — 'J'l'mjiorary  loans. 

Sec  4005.  No  money  must  be  borrowed  on  a  temporary  loan  by  any  county 
excejit  in  anticii>ation  of  the  taxes  of  the  current  fiscal  year,  and  the  same  must 
always  ])e  made  payable  within  eight  months  from  the  time  of  making  the  loan. 

4006.  ClasHifwalion  of  counties. 

Sec,  4000.  For  purposes  other  than  for  roads  and  highways  the  counties  of 
this  state  are  clas.sified  as  follows: 

(a)  The  original  Bfctlon  did  not  have  the  provlBO. 

520 


GOVEENMENT  OF  COUNTIES.  400G-4027 

1.  Those  containing  twenty  thousand  inhabitants  or  over  constitute  the  first 
class; 

2.  Those  containing  eight  thousand  and  under  twenty  thousand  iulmhitaiits 
constitute  the  second  cLass;  and, 

3.  Those  containing-  less  than  eight  thousand  inhabitants  constitute  the  third 
class. 

4007.  Same. 

Sec,  4007.  Whenever  a  new  census  is  taken,  the  counties,  on  the  first  day  of 
July  next  thereafter,  are,  by  operation  of  law,  classified  under  such  census. 

CHAPTER  II. 

THE    BOARD   OF   SUPERVISORS. 

Akticle  I.  Organization  and  Teems  of  Board 4022 

II.  General  Permanent  Powers 4U'l(j 

III.  Other  Powers  and  Restrictions 4004 

AKTICLE  I. 

OKGANIZATION  AND  TEEMS  OF  THE  BOARD. 

4022.  Board,  how  many  to  compose. 

Sec.  4022.  Each  county  must  have  a  board  of  supervisors,  consisting: 

1.  In  counties  of  the  first  class,  of  seven  members; 

2.  In  counties  of  the  second  class,  of  five  members; 

3.  In  counties  of  the  third  class,  of  three  members. 

[Amador  county  was  specially  declared  a  county  of  the  third  class  by  act 
approved  March  18,  1874;  1873-4,  443.  Humboldt  county  was  constituted  a 
county  of  the  second  class  by  act  approved  March  18,  1876;  1875-G,  333.  J 

4023.  Qualifications. 

Sec.  4023.  Each  member  of  the  board  of  supervisors  must  be  an  elector  of  the 
district  he  represents. 

4024.  Term  of  office. 

Sec  4024.  The  tenn  of  office  of  a  sujjervisor  is  three  years. 

4025.  When  number  increased  or  decreased,  what  hoard  must  do. 

Sec,  4025.  If,  under  the  classification,  the  number  of  supervisors  of  any 
county  is  either  increased  or  diminished,  the  board  of  supervisors  must  re-dis- 
trict the  county  into  supervisor  districts,  as  nearly  equal  in  population  as  may 
be,  to  corresj)ond  with  the  number  of  supervisors  to  wdaich  it  is,  under  the  new 
classification,  entitled.  If  the  number  is  increased,  at  the  first  general  election 
thereafter  supervisors  must  be  elected  for  such  new  districts  in  which  no  super- 
visors then  acting  reside;  and  if  the  number  is  decreased,  no  successors  must 
be  elected  for  supervisors  whose  terms  expire  until  the  number  is  decreased  to 
that  to  which  the  county  is  entitled. 

4026.  Vacancy  in  hoard,  how  filled. 

Sec.  4026.  Whenever  a  vacancy  occurs  in  the  board  of  supervisors,  from  a 
failure  to  elect  or  otherwise,  the  county  judge  must  fill  the  vacancy  by  ajijioint- 
ing  for  the  unexpired  term  some  qualified  elector  of  the  district  in  which  the 
vacancy  occurs. 

4027.  Members,  how  classified  for  election. 

Sec.  4027.  The  members  of  the  board  of  supervisors  must  be  by  themselves 
so  classified  that  a  number  as  nearly  equal  as  may  be  must  be  elected  each  year; 
the  member  longest  in  commission  is  the  chairman  of  the  board;  and  when  two 
or  more  commissions  expire  at  the  same  time,  the  board  must  elect  a  chau'man 

521 


4027-4032  POLITICAL  CODE. 

from  those  holding  the  oldest  commissions.  A  supervisor  appointed  to  fill  a 
vacancy  is  not  the  holder  of  the  oldest  commission,  under  this  section,  unless  all 
the  suiieiTisors  are  similarl}'  situated. 

4028.  Chairman,  permanent  and  iemporarij. 

Sec.  4028.  The  chairman  must  preside  at  all  meetings  of  the  board,  and  in 
ca.^e  of  his  absence  or  inability  to  act,  the  members  j^resent  must,  by  an  order, 
select  one  of  their  number  to  act  as  chairman  temporarily.  Any  member  of  the 
board  may  administer  oaths  to  any  person  concerning  any  matter  submitted  to 
them  or  connected  with  their  jDOwers  or  duties. 

4029.  Clerk,  rcho  is,  and  his  compensation. 

Sec.  4029.  The  clerk  of  the  county  is  ex  officio  clerk  of  the  board  of  super- 
risoi-s.  The  records  must  be  signed  by  the  chairman  and  the  clerk.  The  clerk 
must  be  jiaid  such  compensation  as  is  provided  by  law,  in  full  for  all  services 
am  clerk  of  the  board. 

4030.  Indies  of  clerk. 

Sec.  4030.  The  clerk  of  the  board  must: 

1.  Eecord  all  the  proceedings  of  the  board; 

2.  Make  full  entries  of  all  their  resolutions  and  decisions  on  all  questions 
concerning  the  raising  of  money  for,  and  the  allowance  of  accounts  against  the 
county; 

3.  Record  the  vote  of  each  member  on  any  question  upon  which  there  is  a 
division,  or  at  the  request  of  any  member  present; 

4.  Sign  all  orders  made  and  warrants  issued  by  order  of  the  board  for  the 
payment  of  money,  and  when  he  is  not  also  the  county  auditor,  certify  the 
same  to  that  officer; 

5.  Record  the  reports  of  the  county  treasurer  of  the  receipts  and  disburse- 
ments of  the  county; 

G.  Preserve  and  file  all  accounts  acted  upon  by  the  board; 

7.  Preserve  and  file  all  petitions  and  applications  for  franchises,  and  record 
the  action  of  the  board  thereon; 

8.  Record  all  orders  levying  taxes;  and, 

9.  Perform  all  other  duties  required  by  law  or  any  rule  or  order  of  the  board. 

4031.  Books  to  be  kept  by  the  board. 

Sec  4031.  The  board  must  cause  to  be  kej)t: 

1.  A  "minute  book,"  in  which  must  be  recorded  all  orders  and  decisions 
made  by  them,  and  the  daily  proceedings  had  at  all  regular  and  special 
meetings. 

2.  An  "allowance  book."  in  which  must  be  recorded  all  orders  for  the  allow- 
ance of  money  from  the  county  treasury,  to  whom  made,  and  on  what  account, 
dating,  numbering,  and  indexing  the  same  through  each  year. 

3.  A  "road  book,"  containing  all  proceedings  and  adjudications  relating  to 
the  establisliment,  maintenance,  change,  and  discontinuance  of  roads,  road  dis- 
tricts, and  overseers  thereof,  their  reports  and  accounts. 

4.  A  "  franchise  book,"  containing  all  franchises  granted  by  them,  for  what 
puri^ose,  the  length  of  time  and  to  whom  granted,  the  amount  of  bond  and 
license  tax  required. 

5.  A  "  warrant  book,"  to  be  kept  by  the  county  auditor,  in  which  must  be 
entered,  in  the  order  of  drawing,  all  warrants  drawn  on  the  treasury,  with  their 
number  and  reference  to  the  order  on  the  minute  book,  with  the  date,  amount, 
on  what  account,  and  name  of  payee. 

4032.  Ji'i'f/idar  vieelinf/sji.rcd. 

Sec  4032.  The  regular  meetings  of  the  boards  of  supervisors  must  be  held 
at  their  respective  county  seats  on  the  first  Mondays  in  May,  August,  Novem- 

522 


GOVERNMENT  OF  COUNTIES.  4032-404G 

ber,  and  February  of  eacb  year,  and  must  continue  from  time  to  time  until  all 
the  business  before  them  is  disposed  of.  Such  other  meetiiiys  must  be  lield,  to 
canvass  election  returns,  equalize  taxation,  and  other  purposes,  as  are  pre- 
scribed in  this  code  or  provided  for  by  the  board. 

4033.  Other  r'egidar  meetings  may  be  fixed. 

Sec.  4033.  In  the  counties  of  the  first  and  second  classes  additional  regular 
meetings,  not  exceeding  two  in  each  year,  may  be  provided  for,  fixed,  and  held 
for  the  transaction  of  business  by  an  order  duly  entered  of  record,  in  which 
must  be  sjDecified  the  character  of  business  to  be  transacted  at  such  additional 
regular  meetings,  and  none  other  than  that  specified  must  be  transacted. 
Notice  of  the  order  fixing  such  additional  meetings  must  be  published  for 
four  weeks,  in  a  paper  published  in  the  county,  before  the  ordinance  is 
effective. 

4034.  Sj:>ecial  meetings,  how  called. 

Sec.  4034.  If  at  any  time  after  the  adjournment  of  a  regular  meeting  the 
business  of  the  county  requires  a  meeting  of  the  board,  a  special  meeting  may 
be  ordered  by  a  majority  of  the  board.  The  order  must  be  entered  of  record, 
and  five  days'  notice  thereof  must,  by  the  clerk,  be  given  to  each  member  not 
joining  in  the  order.  The  order  must  specify  the  business  to  be  transacted, 
and  none  other  than  that  specified  must  be  transacted  at  such  special  meeting. 

4035.  Ileetings  and  r^ecords  jniblic. 

Sec.  4035.  All  meetings  of  the  board  must  be  public,  and  the  books,  records, 
and  accounts  must  be  kept  at  the  office  of  the  clerk,  open  at  all  times  for  public 
inspection  free  of  charge. 

ARTICLE  II. 

GENERAL    PERMANENT    POWERS. 

4046.   General  pervianeni poioers. 

Sec  4046.  The  boards  of  supeiwisors,  in  their  respective  counties,  have  juris- 
diction and  j)Ower,  under  such  limitations  and  restrictions  as  are  prescribed  by 
law: 
To  supervise  official  conduct  of  county  officers. 

1.  To  supervise  the  official  conduct  of  all  county  officers,  and  officers  of  all 
districts  and  other  subdivisions  of  the  county  charged  with  assessing,  collect- 
ing, safe  keeping,  management,  or  disbursement  of  the  public  revenues;  see 
that  they  faithfully  perform  their  duties;  direct  prosecutions  for  delinquencies; 
and  when  necessary,  require  them  to  renew  their  official  bonds,  to  make  reports, 
and  to  present  their  books  and  accounts  for  inspection. 

To  district  county. 

2.  To  divide  the  counties  into  townships,  school,  road,  and  other  districts 
required  by  law,  change  the  same  and  create  others,  as  convenience  requii-es. 

To  create  election  precincts. 

3.  To  establish,  abolish,  and  change  election  precincts,  and  to  appoint  inspect- 
ors and  judges  of  elections,  canvass  all  election  returns,  declare  the  result,  and 
issue  certificates  thereof. 

Roads,  bridges,  etc. 

4.  To  lay  out,  maintain,  control,  and  manage  public  roads,  turnpikes,  ferries, 
and  bridges  within  the  county,  and  levy  such  tax  therefor  as  authorized  by  law. 

Indigent  sick. 

5.  To  provide  for  the  care  and  maintenance  of  the  indigent  sick,  or  the  other- 
wise dependent  poor  of  the  county;  erect,  officer,  and  maintain  hospitals  there- 

523 


4046  POLITICAL  CODE. 

for,  or  otherwise  in-ovide  for  tlie  same;  and  to  levy  the  necessary  tax  therefor, 
lier  capita,  not  exceeding  three  dollars,  and  an  ad  valorem  tax  not  exceeding- 
one  fifth  of  one  per  cent. ,  or  either  of  such  levies,  when  both  are  not  required, 
on  all  taxpayers  and  taxable  property  of  the  county. 

To  provide  county  farm. 

G.  To   provide   a  farm   in   connection  with  the  county  hospital,  and   make 
regulations  for  working  the  same. 
To  proi'ide  rooms  for  count  ij  jnirposes. 

7.  "When  there  are  no  necessary  county  buildings,  to  provide  suitable  rooms 
for  county  pui-poses. 

Acquire  property  for  the  county. 

8.  To  purchase,  receive  by  donation,  or  lease  any  real  or  personal  property 
necessary  for  the  use  of  the  county,  preserve,  take  care  of,  manage,  and  control 
the  same;  but  no  jDurchase  of  real  i^roi^erty  must  be  made  unless  the  value  of 
the  same  has  been  previously  estimated  b^'  tliree  disinterested  citizens  of  the 
county,  appointed  by  them  for  that  i3urpose,  and  no  more  than  the  ajDpraised 
value  must  be  paid  therefor. 

Provide  county  buildings. 

9.  To  cause  to  be  erected  and  furnished  a  court-house,  jail,  hospital,  and 
such  other  jiublic  buildings  as  may  be  necessary. 

May  sell  county  property. 

10.  To  sell  at  public  auction  at  the  court-house  door,  after  thirty  days'  i:»re- 
vious  notice  given  by  publication  in  a  newspajDcr  of  the  county,  or  posted  in 
five  public  places  of  the  county,  and  convey  to  the  highest  bidder,  for  cash,  any 
property,  real  or  personal,  belonging  to  the  county,  j^aying  the  proceeds  into 
the  county  treasury  for  the  use  of  the  count}'. 

Audit  accounts  of  officers. 

11.  To  examine  and  audit  the  accounts  of  all  officers  having  the  care,  man- 
agement, collection,  or  disbursement  of  moneys  belonging  to  the  county,  or 
approjiriated  by  law  or  otherwise  for  its  use  and  benefit. 

Allow  accounts. 

12.  To  examine,  settle,  and  allow  all  accounts  legally  chargeable  against  the 
county,  excejjt  salaries  of  officers,  and  order  warrants  to  be  drawn  on  the  county 
treasurer  therefor,  and  provide  for  the  issuing  of  the  same. 

Levy  tax  for  current  expenses. 

13.  To  levy  such  tax  annually  on  the  taxable  proj^erty  of  the  county  as  may 
1)6  necessary  to  defray  the  current  expenses  thereof,  including  salaries  other- 
wise unprovided  for,  not  exceeding  one  dollar  on  every  one  hundred  dollars  of 
value  for  any  one  year;  and  to  levy  such  taxes  as  arc  required  to  be  levied  by 
special  or  local  statutes. 

Board  (f  Cfjualization. 

14.  To  equalize  the  assessments. 

To  direct  h'yal  proceedings. 

lo.  To  direct  and  control  the  prosecution  and  defense  of  all  suits  to  which 
the  county  is  a  party. 

To  inHure  property. 

10.  Tu  insure  the  county  buildings  in  the  name  of  and  for  the  benefit  of  the 
county. 

To  grant  franchises. 

17.  To  grant  licf-nses  and  franchises,  as  provided  by  law,  for  constructing, 
keeping,  and  taking  t(dls  on  roads,  bridges,  ferries,  wharves,  chutes,  and  piers. 

524 


GOVERNMENT  OF  COUNTIES.  404G-4047 

Plx  compmHation  of  officers. 

18.  To  fix  the  compensation  of  all  county  officers  not  othenvise  in  this  code 
or  by  general  or  special  law  fixed,  and  provide  for  the  payment  of  the  same. 
To  fill  vacancies. 

19.  To  fill  by  appointment  all  vacancies  that  may  occur  in  county  or  town- 
ship offices,  except  those  of  county  judge  or  supervisor. 

To  ordain  hccdlli  regidations. 

20.  To  adapt  to  the  county  the  provisions  in  this  code,  for  the  preservation 
of  the  health  of  San  Francisco  or  Sacramento,  for  such  limited  time  as  they 
may  deem  proper,  and  to  provide  for  the  exjienses  thereof. 

To  contract  for  printing. 

21.  To  contract  for  the  county  printing,  and  provide  books  and  stationery  for 
county  officers. 

To  publish  proceedings. 

22.  At  the  adjournment  of  each  session  of  the  board  to  cause  to  be  published 
in  a  newspaper  or  otherwise  a  fair  statement  of  all  their  proceedings,  and  semi- 
annually a  statement  of  the  financial  condition  of  the  county. 

3Iay  ordain  certain  regulations. 

23.  To  make  regulations  for  the  destruction  of  gophers,  squirrels,  other  wild 
animals,  and  noxious  weeds,  and  to  levy  a  special  tax  of  not  exceeding  three 
cents  on  each  one  hundred  dollars  of  taxable  property,  wherewith  to  pay 
rewards  therefor.  To  make  regulations  for  the  protection  of  game,  fish,  and 
shellfish,  and  for  the  prevention  of  injuries  to  sheep  by  dogs,  and  to  tax  dogs, 
and  direct  the  application  of  the  tax.  "When  such  regulations  are  made  as 
provided  in  this  section  relating  to  game  and  fish,  the  laws  of  the  state  for  the 
protection  thereof  are  suspended  in  such  county. 

3Iay  ordain  rides  to  govern  hoard. 

24.  To  make  and  enforce  such  rules  and  regulations  for  the  government  of 
their  body,  the  preservation  of  order,  and  the  transaction  of  business,  as  may 
be  necessary. 

May  provide  a  seal. 

25.  To  adopt  a  seal  for  their  board,  a  description  and  impression  whereof 
must  be  filed  by  their  clerk  in  the  offices  of  the  county  clerk  and  secretaiy  of 
state. 

May  do  all  other  acts  required  or  necessary. 

26.  To  do  and  perform  all  other  acts  and  things  required  by  law  not  in  thi.s 
title  enumerated,  or  which  may  be  necessary  to  the  full  discharge  of  the  duties 
of  the  chief  executive  authority  of  the  county  government. 

4047.  Powers  of  hoard  of  supervisors. 

Sec.  4047.  The  board  of  supervisors  shall  have  power  to  direct  the  sheriff  to 
attend  in  person,  or  by  deputy,  all  the  meetings  of  the  board,  to  preserve  order, 
serve  the  notices  or  citations,  as  directed  by  the  board.  And  the  board  shall 
have  the  same  power  to  punish  for  contempt,  by  fine  and  imprisonment,  as  is 
now  exercised  and  allowed  by  law  to  county  courts,  to  require  obedience  to 
their  citations,  and  decorum  in  their  meetings.  [:Seio  section,  ai^proved  March 
18,  1874;  Amendments  l^l^-l,  172;  took  effect  from  passage. 

4047.   Contracts,  how  made. 
Sec.  4047.  All  contracts  for: 

1.  County  printing; 

2.  Books  and  stationery;  and, 

3.  Supplies  for  county  institutions;  must  be  made  with  the  lowest  bidder; 

525 


4047-4071-  *  POLITICAL  CODE. 

and  after  ten  days'  public  notice  that  such  contract  Avill  be  let,  the  bidding  must 
be  by  sealed  in'oposals.  \New  section,  approved  Mirch  30,1874;  Amendments 
1873-4,  5G;  took  effect  Jidy  G,  1874. 

ARTICLE  III. 

OTHEn    POWERS    AND    RESTRICTIONS. 

4064.  Provide  appliances  for  holding  elections. 

Sec.  40G4.  The  board  must  provide  all  poll  lists,  poll  books,  blank  returns 
and  certificates,  proclamations  of  elections,  and  other  appropriate  and  neces- 
sary aj^iiliances  for  holding  all  elections  in  the  county,  and  allow  reasonable 
charges  therefor,  and  for  the  transmission  and  return  of  the  same  to  the  proper 
officers, 

4065.  Certijicates  issued  as  board  of  canvassers. 

Sec  40G5.  Whenever,  as  canvassers,  the  board  of  supervisors  have  declared 
the  residt  of  an  election  held  in  the  county,  certificates  must  be  by  their  clerk 
is.sued  to  all  persons  elected  to  a  county  office  or  to  a  township  or  district  office 
therein,  and  such  other  certificates  must  be  made  out  and  transmit,ted  as  required 
by  the  title  relative  to  "Elections." 

4066.  Appointments  must  be  made  on  petition. 

Sec  40G6.  No  appointment  to  fill  a  vacancy  in  office  must  be  made  by  the 
board  except  upon  petition,  signed  by  at  least  thirty  qualified  electors  of  the 
county,  if  for  a  county  office,  or  by  not  less  than  fifteen  of  the  qualified  electors 
of  the  township  or  district,  if  for  a  township  or  district  office. 

4067.  Power  to  require  attendance  of  ivitnesses. 

Sec.  40G7.  The  board  may,  by  their  chairman  or  the  chairman  of  any  com- 
mittee, issue  subpcenas  to  compel  the  attendance  of  any  person  and  the  pro- 
duction of  ail}-  books  or  papers  relating  to  the  affaii's  of  the  county,  for  the 
puri^o-se  of  examination  upon  any  matter  within  their  jurisdiction. 

4068.  Kraminalion  of  witnesses. 

Sec  4UG8.  A  witness  is  bound  to  attend,  when  served,  and  to  answer  all 
questions  which  he  would  be  bound  to  answer  in  the  same  case  before  a  court 
of  justice.  Disobedience  to  the  subpoena,  or  to  an  order  to  attend,  or  to  tes- 
tify, may  be  enforced  by  the  board,  and  for  that  purjwse  the  board  has  all  the 
jjowers  conferred  by,  and  the  witness  is  subject  to  all  the  provisions  of,  Chap- 
ter II,  Title  III,  Part  IV,  of  the  Code  of  Civil  Procedure.     [See  post,  11,985.] 

4069.  Officers  and  icilnesscs  not  to  be  prepaid. 

Sec  40G!).  Neither  the  officers  serving  subpoenas  nor  the  witnesses  subpoenaed 
to  testify  in  relation  to  matters  of  j)ublic  concern  before  the  board  of  super- 
visors are  entitled  to  have  their  fees  prepaid,  but  officers  must  serve  the  subpcenas 
and  witnesses  must  attend  without  their  fees  being  prepaid.  The  board  must 
all<jw  tlieni  reasonable  compensation  for  services  and  attendance. 

4070.  Wlieii  board  must  not  allow  claims  or  contract  debts. 

Sec.  4070.  The  board  must  not  for  any  i^urpose  contract  debts  or  liabilities, 
excejit  in  pursuance  of  law  or  under  ordinances  of  their  own,  adopted  in  accord- 
ance with  the  powers  licnin  conferred;  and  whenever  debts  and  liabilities  have 
l>een  created  which,  added  to  the  salaries  of  county  officers,  and  other  esti- 
mated liabilities  fixed  by  law  for  the  remainder  of  the  year,  equal  in  the  aggre- 
gate the  revenue  of  the  cminly  for  current  expenses,  no  further  allowance  of 
any  actcounts  must  be  made. 

4071.  Count ij  not  to  pi'eKrid  crrlain  claims  against  county. 

Sec.  4071.  No  county  officer   shall,  except  for  his  own  service,  present  any 

52G 


GOVERNMENT  OF  COUNTIES.  4071-4078 

claim,  account,  or  demand,  for  allowance  against  the  county,  nor  in  any  way 
advocate  the  relief  asked  on  the  claim  or  demand  made  b}'  another.  Any  citi- 
zen and  taxpayer  of  the  county  in  which  he  resides  may  appear  before  the 
board  and  oppose  the  allowance  of  any  claim  or  demand  made  against  the 
county.  [Amendment  approved  April  1, 187G;  J mendme?i/s  1875-0,  (55;  (ooke/J'cct 
sixtieth  day  after  passage.'-"^ 

4072.  Account,  how  made  and  prosecuted. 

Sec.  4072.  The  board  of  supervisors  must  not  hear  or  consider  any  claim  in 
favor  of  an  individual  against  the  county  iinless  an  account  properly  made  out, 
giving  all  items  of  the  claim,  duly  verified  as  to  its  correctness,  and  that  the 
amount  claimed  is  justly  due,  is  presented  to  the  board  within  a  year  after  the 
last  item  of  the  account  accrued. 

4073.  Account  must  be  filed  prior  to  session. 

Sec.  4073.  No  account  must  be  necessarily  passed  upon  by  the  board  unless 
made  out  as  prescribed  in  the  preceding  section  and  filed  by  the  clerk  at  least 
one  day  prior  to  the  session  at  which  it  is  asked  to  be  heard. 

4074.  What  claims  to  he  rejected — Proceedings  on  part  allowance. 

Sec.  4074.  When  the  board  finds  that  any  claim  presented  is  not  payable  by 
the  county,  or  is  not  a  proper  county  charge,  it  must  be  rejected;  if  they  find 
it  to  be  a  proper  county  charge,  but  greater  in  amount  than  is  justly  due,  the 
board  ma}'  allow  the  claim  in  part,  and  draw  a  warrant  for  the  portion  allowed, 
on  the  claimant  filing  a  receipt  in  full  for  his  account.  If  the  claimant  is  un- 
willing to  I'eceive  such  amount  in  full  payment  the  claim  may  be  again  consid- 
ered at  the  next  regular  succeeding  session  of  the  board,  but  not  afterwards. 

4075.  Claimant  may  sue,  when,  and  xohen  recover  costs. 

Sec  4075.  A  claimant  dissatisfied  with  the  rejection  of  his  claim  or  demand, 
or  with  the  amount  allowed  him  on  his  account,  may  sue  the  county  therefor 
at  any  time  within  six  months  after  the  final  action  of  the  board,  but  not  after- 
ward; and  if  in  such  action  judgment  is  recovered  for  more  than  the  board 
allowed,  on  presentation  of  the  judgment  the  board  must  allow  and  pay  the 
same,  together  with  the  costs  adjudged;  but  if  no  more  is  recovered  than  the 
board  allowed,  the  board  must  pay  the  claimant  no  more  than  v/aa  originally 
allowed. 

4076.  What  ivarrants  must  specify;  how  presented  and  p^aid. 

Sec  4076.  AVarrants  drawn  by  order  of  the  supervisors  on  the  county  treas- 
ury for  the  current  expenses  during  each  year,  must  specify  the  lial)ility  for 
which  they  are  drawn,  and  when  they  accrued,  and  must  be  paid  in  the  order 
of  presentation  to  the  treasurer.  If  the  fund  is  insufiicient  to  pay  any  war- 
rant, it  must  be  registered,  and  thereafter  paid  in  the  order  of  its  registration. 

4077.  In  what  transactions  supervisors  not  lo  he  interested. 

Sec  4077.  No  member  of  the  board  must  be  interested,  directly  or  indirectly, 
in  any  property  purchased  for  the  use  of  the  county,  nor  in  any  pm-chase  or  sale 
of  property  belonging  to  the  county,  nor  in  any  contract  made  by  the  board  or 
other  person  on  behalf  of  the  county,  for  the  erection  of  public  buildings,  the 
opening  or  improvement  of  roads,  or  the  building  of  bridges,  or  for  other 
purposes. 

4078.  Transfer  of  application,  in  lohat  cases  made. 

Sec  4078.  Whenever  an  application  is  made  to  the  board  for  an  order,  fran- 
chise or  license,  relating  to  any  toll  road,  bridge,  ferry,  wharf,  chute,  pier  or 
other  subject  over  which  the  board  has  jurisdiction,  in  which  a  majority  of  the 
board  are  not  disinterested,  the  application,  by  order  of  the  board,  must  be 

(a)  The  original  section  consisted  of  the  last  sentence  alone. 

527 


4078-4085  POLITICAL  CODE. 

transfen-ed  to  the  l.ioard  of  supervisors  of  an  adjoining  county;  tlie  clerk  of  the 
board  must  thereupon  certify  the  application  and  all  orders  and  papers  relating 
thereto  to  the  board  to  ^vhich  tlie  transfer  is  ordered;  and  thereafter  the  board 
to  ^Yhich  the  same  is  certified  has  full  jurisdiction  to  hear  and  determine  the 
application.  In  the  cases  mentioned  in  this  code  wherein  the  county  judge  may 
act  for  an  interested  supervisor,  no  transfer  of  the  application  need  be  made 
unless  the  judge  is  also  interested. 

4079.  yolices,  how  given. 

Sec.  -4079.  All  pubHc  notices  of  proceedings  of,  or  to  be  had  before,  the  board, 
not  otherwise  specially  provided  for,  must  be  posted  at  the  court-house  door, 
and  in  each  election  precinct  in  the  county.  [Amendment,  approved  March  30, 
1874;  Amendments  1873-4,  56;  took  effect  July  Q>,  1874.^'' 

4080.  Provide  for  cultivating  sltade  and  ornamental  trees. 

Sec.  4080.  The  board,  under  such  regulations  as  they  may  adopt,  must  en- 
courage the  planting  and  jn-eservation  of  shade  and  ornamental  trees  on  the 
public  roads  and  highways,  and  on  and  about  the  public  grounds  and  buildings 
of  the  county,  and  pay  to  persons  planting  and  cultivating  the  same,  for  every 
living  tree  thus  planted,  at  the  aye  of  four  years,  the  sum  of  one  dollar. 

4081.  Hequire  assessqrs  to  report  statistics. 

Sec  4081.  The  board  must  require  assessors  to  report  to  the  surveyoi'-general 
annually  a  time  statement  of  the  agricultural  and  industrial  pursuits  and  j^rod- 
ucts  of  the  county,  with  such  other  statistical  information  as  they  may  by 
ordinance  direct,  and  enforce  obedience  of  the  assessor  thereto  by  deducting 
such  i^roportion  of  his  compensation  as  assessor  as  to  them  may  seem  a2:)propri- 
ate,  for  a  failure  to  comply  with  the  order. 

4082.  Claims  in  favor  of  supervisors. 

Sec  4082.  All  claims  against  the  county  presented  by  members  of  the  board 
of  supervisors  for  per  diem  and  mileage  or  other  service  rendered  by  them, 
must  be  verified  as  other  claims,  and  must  state  that  the  service  has  been  actu- 
ally rendered. 

4083.  Annual  statement,  when  made  and  what  to  contain. 

Slc.  4083.  The  board  must  have  prej^ared  b}-  the  clerk,  and  when  he  is  not 
also  auditor  then  by  that  officer,  and  under  their  direction,  prior  to  their  an- 
nual August  meeting,  a  statement  showing: 

1.  The  indebtedness  of  the  county,  funded  and  floating,  stating  the  amount- 
of  each  class  and  the  rate  of  interest  borne  by  such  indebtedness  or  any  j^art 
thereof; 

2.  A  concise  desci-iption  of  all  iiroperty  owned  by  the  county,  with  an  approx- 
imate estimate  of  the  value  thereof,  and  the  amount  of  cash  in  the  county  treas- 
ury and  its  several  funds. 

4084.  Jtrceive  and  apphj  donations  of  land,  etc.,  to  specific  purposes. 

Sec  4084.  The  board  must  receive  from  the  United  States  or  other  sources, 
lands  and  other  property  gi'anted  or  donated  to  the  county  for  the  purpose  of 
aiding  in  the  erection  of  county  buildings,  roads,  bridges,  or  other  specific  pur- 
I>oses,  and  may  use  the  same  therefor,  and  may  provide  for  the  sale  of  the  same 
an<l  the  application  of  the  proceeds  thereof. 
408.C).   Improve  streams  not  navigable. 

Sec.  408o.  The  Ixjurd  may  provide  for  widening,  deepening,  straightening, 
removiii;,'  obstructions  from,  and  otherwise  improving,  all  streams  within  the 

(11  Tt..  f.rlt/iniil  FL-rtlnn  pmvld.il  Hint  the  notir.s     copies  Uiercof  must  be  posted  at  the  cotirt-house  door, 
r«-f.  md  to  ■•  iiiiiht  bi-  i.ubll»ln-d  In  k  ii<w>i,.ipLr  pub-     and  at  two  other  public  nlates  in  tlie  county." 
Uubcd  In  tbe  county;  if  tUcrelBDOBurh  utwhpnper,  then 

528 


GOVERNMENT  OF  COUNTIES.  4085-4103 

county,  for  use  as  public  highways  for  rafting  and  lioating  himhor,  when  such 
streams  are  not  declared  by  law  to  be  and  are  not  in  fact  navigable  for  conuner- 
cial  purposes,  and  provide  regulations  for  the  use  thereof;  but  no  regulations  of 
the  board,  nor  improvements  directed,  must  in  any  manner  interfere  with  the 
private  rights  or  privileges  of  riparian  owners,  miners  or  others. 

4036.   What  may  be  recovered  on  bond. 

Sec.  4086.  Any  supervisor  who  neglects  or  refuses  to  perform  any  duty  im- 
posed on  him,  without  just  cause  therefor,  or  who  willfully  violates  any  law  pro- 
vided for  his  government  as  such  officer,  or  fraudulently  or  corruptly  perfonns 
any  duty  imjiosed  on  him,  or  willfully,  fraudulently,  or  corruptly  attempts  to 
perform  an  act,  as  supervisor,  unauthorized  by  law,  in  addition  to  the  penalty 
provided  in  the  Penal  Code,  forfeits  to  the  county  five  hundred  dollars  for 
every  such  act,  to  be  recovered  on  his  official  bond,  and  is  further  liable  on  his 
official  bond  to  any  j)erson  injured  thereby  for  all  damages  sustained. 
4087.  Chapter  does  not  apply  to  San  Iranciaco. 

Sec.  4087.  This  chapter  does  not  apply  to  the  city  and  county  of  San  Fran- 
cisco. 

CHAPTEE  III. 

COUNTY    OFFICERS. 

Aeticle    I.  Genesax,  Provisions 4101 

II.  County  Judge 41 34 

III.  County  Tkeasuekr 4144 

IV.  Sheriff 4175 

V.  County  Clerk  ...    4204 

VI.  County  Auditor 4215 

VII.  County  Recorder 4234 

VIII.  District  Attorney 4256 

IX.   County  Surveyor 4268 

X.   Coroner 4285 

XI.  Assessors,    Tax   Collectors,    School   Superintendent,    Public  Adminis- 
trator, AND  Commissioner  of  Highways 4300 

XII.  Constables,  Justices  of  the  Peace,  and  Inferior  Officers 4314 

ARTICLE  I. 

GENERAL    PROVISIONS. 

4101.  Age,  citizenship,  and  residence,  as  to  county  officers. 

Sec  4101.  No  person  is  eligible  to  a  county  office  who  at  the  time  of  his 
election  is  not  of  the  age  of  twenty-one  years,  a  citizen  of  the  state,  and  an 
elector  of  the  county  in  which  the  duties  of  the  office  are  to  be  exercised. 

4102.  Same,  as  to  district  and  township  officers. 

Sec  4102.  No  person  is  eligible  to  a  district  or  township  office  who  is  not  of 
the  age  of  twenty-one  years,  a  citizen  of  the  state,  and  an  elector  of  the  dis- 
trict or  township  in  which  the  duties  of  the  office  are  to  be  exercised  or  for 
which  he  is  elected. 

4103.  County  officers  enumerated. 

Sec  4103.  The  officers  of  a  county  are: 

A  county  judge; 

A  treasurer; 

A  county  clerk; 

An  auditor; 

A  sheriff; 

A  tax  collector; 

A  district  attoi'ney; 

34  "  529 


4103-410G  POLITICAL  CODE. 

A  recorder; 
Au  assessor; 
A  surveyor; 

A  school  superintendent; 
A  coroner; 

A  public  administrator; 
A  board  of  supervisors;  and 
—In  counties  of  the  first  class,  for  highway  purposes, 
A  commissioner  of  highways, 

4104.  Tou-)if<hip  and  olher  inferior  officers. 

Sec.  4104.  The  officers  of  townships  are  two  justices  of  the  peace,  two  con- 
stables, and  such  other  inferior  and  subordinate  officers  as  are  provided  for 
elsewhere  in  this  code,  or  by  the  board  of  supervisors. 

[For  reference  to  si:)ecial  acts  changing  the  above  provision  in  certain  coun- 
ties, See  under  post,  4109.] 

4105.  Offices  united  and  consolidated. 

Sec.  4105.  In  all  the  counties  of  the  third  class: 

1.  The  county  clerk  shall  be  ex  officio  auditor  and  recoi'der; 

2.  The  sherift"  shall  be  ex  officio  tax  collector;  and 

3.  The  coroner  shall  be  ex  officio  jDublic  administrator. 
410G.    Coiisolidatiug  offices  by  the  board. 

Sec.  41Uti.  By  an  ordinance  adopted,  recorded,  and  published  at  least  three 
months  prior  to  a  general  election  at  which  county  officers  are  to  be  elected, 
the  boards  of  supervisors  of  counties  of  the  second  class  may  unite  and  consol- 
idate certain  offices  by  declaring  that: 

1.  The  recorder  elected  shall  be  ex  officio  auditor; 

2.  The  county  clerk  elected  shall  be  ex  officio  auditor  and  recorder; 

3.  The  sheriff  elected  shall  be  ex  officio  tax  collector;  and, 

4.  The  coroner  elected  shall  be  ex  officio  public  administrator. 

An  Act  to  provide  for  public  adiuiiiistiators  iu  certain  cases. 
Approved  March  30,  1872  ;  1871-2,  796. 

Public  adminidrators  failing  to  qualify. 

Section  1.  If  the  public  administrator  of  any  county  of  this  state  fails  to 
qualify,  or  in  person  fails  to  j^eiform  the  duties  of  his  office,  the  coroner  of  such 
county  shall  be  ex  officio  public  administrator;  and  in  case  both  j^ublic  admin- 
istrator and  coroner  fail  to  qualif}',  or  to  perform  the  duties  appertaining 
thereto,  the  supervisors  shall  appoint  a  suitable  person  to  be  public  adminis- 
trator; and  all  laws  applicable  to  the  qualification,  powers,  duties,  and  com- 
pensation of  public  administrator  shall  apply  to  the  coroner  or  appointee  of  the 
supervisors  as  aforesaid. 

Skc.  2.  This  act  shall  take  effect  and  be  in  force  from  and  after  its  passage. 

(In  reference  to  the  officers  mentioned  in  the  foregoing  two  sections  there  are 
in  force  iu  some  of  the  counties  special  acts,  which  may  here  be  referred  to,  as 
follows:] 

Mendocino  coitnty. 

An  .'\ct  to  8ei)arato  the  office  of  county  recorder  from  the  office  of  county 
clerk  in  the  county  of  Mendocino,  approved  January  8,  1872;  1871-2,  17. 
(!outra  Coxfa  county. 

An  Act  to  authorize  the  public  administrator  of  Contra  Costa  county  to  act 
as  coroner,  approved  February  28,  1872;  1871-2,  170, 
Solnno  county. 

An  Act  to  better  define  the  duties  and  fix  the  compensation  of  certain  offi- 
cers of  Soliino  county,  approved  March  27,  1872;  1871-2,  G24, 

530 


GOVERNMENT  OF  COUNTIES.  4106 

An  Act  making  tlie  county  recorder  of  Solano  county  ex  oflicio  auditor  of  said 
county,  and  fixing  his  compensation,  approved  January  28,  1H7G;  1875-0,  14. 
Tulare  couniy. 

An  Act  to  separate  the  office  of  count}'  recorder  from  the  office  of  county 
clerk  in  the  county  of  Tulare,  approved  February  4,  1874;  1873-4,  GO. 
Stanidaus  count ij. 

An  Act  to  separate  the  office  of  county  recorder  from  the  office  of  county 
clerk,  and  to  regulate  the  salaries  of  certain  officers  of  the  county  of  Stanislaus, 
approved  March  4,  1874;  1873-4,  277;  ameuded  March  18,  1874;  1873-4,  448. 

An  Act  concerning  the  offices  of  public  administrator,  coroner,  and  superin- 
tendent of  public  schools  of  the  county  of  Stanislaus,  approved  March  23,  1874; 
1873-4,  537. 

Merced  county. 

An  Act  to  separate  the  office  of  county  recorder  from  the  office  of  county 
clerk,  and  to  regulate  the  salaries  of  certain  officers  of  the  county  of  Merced, 
approved  March  26,  1874;  1873-4,  6G0. 
San  Joaquin  couniy. 

An  Act  making  the  county  treasurer  of  San  Joaquin  county  ex  officio  tax 
collector  and  the  recorder  ex  officio  county  auditor,  apj)roved  March  26,  1874; 
1873-4,  692. 

Placer  county. 

An  Act  consolidating  the  offices  of  sheriff  and  tax  collector  in  the  county  of 
Placer  and  making  the  sheriff  ex  officio  tax  collector,  aj^proved  March  27,  1874; 
1873-4,  709. 

Tehama  county. 

An  Act  making  the  treasurer  of  Tehama  county  ex  officio  tax  collector  and  to 
provide  for  certain  fees  in  office,  aj^proved   March   30,    1874;    1873-4,   790; 
ameuded  by  act  approved  March  11,  1876;  1875-6,  232. 
Santa  Clara  county. 

An  Act  in  relation  to  the  county  officers  of  Santa  Clara  county,  their  fees  and 
salaries,  approved  February  10,  1876;  1875-6,  35. 

[See  also  a  previous  act  of  the  same  title,  apj)roved  March  25,  1876;  1875  6, 
610. 1 

Taolurtine  county. 

An  Act  regulating  the  salaries  of  certain  officers  of  Tuolumne  county,  ap- 
proved February  10,  1876;  1875-6,  45. 

Fresno,  Tulare,  ayid  Kern  counties. 

An  Act  to  separate  the  office  of  county  auditor  from  the  office  of  county 
recorder,  and  to  regulate  official  salaries  in  the  counties  of  Fresno,  Tulare,  and 
Kern,  approved  March  8,  1876;  1875-6,  151;  amended  by  act  approved  March 
20,  1876;  1875-6,  363. 

Alameda  county. 

An  Act  to  amend  an  act  entitled  An  Act  to  fix  the  salaries  of  certain  officers 
in  the  county  of  Alameda,  and  for  other  purposes,  aj^proved  February  27, 1874, 
approved  March  8,  1876;  1875-6,  160. 

San  Diego  couniy. 

An  Act  to  provide  for  the  government  of  the  county  of  San  Diego,  ai^proved 
March  30,  1876;  1875-6,  558. 

Santa  Cruz  county. 

An  Act  in  relation  to  the  county  officers  of  Santa  Cruz  county,  their  fees  and 
salaries,  approved  March  30,  1870;  1875-6,  576. 

531 


4106-4109  POLITICAL  CODE. 

Lalcp  count ij. 

An  Act  concerning  county  officers  of  Lake  county,  and  to  regulate  tlie  fees 
and  salaries  thereof,  approved  ^Maroh  31,  1876;  1875-6,  599. 

iian  Luis  Obi-^po  county. 

An  Act  fixing  the  salaries  and  compensation  of  certain  officers  of  San  Luis 
Obisjjo  county,  approved  March  31,  1876;  1875-6,  608. 

Jiulle  county. 

An  Act  to  amend  an  act  entitled  An  Act  to  fix  the  salaries  and  compensation 
of  certain  officers  of  Butte  county,  approved  March  27,  1874,  approved  April 
3,  1876;  1875-6,  906. 

4107.  Oiiiii'mtn  to  com^oUdate. 

Sec.  4107.  When  there  is  an  omission  by  the  board  of  supervisors  to  consol- 
idate and  to  advertise  the  consolidation  of  offices  as  in  the  preceding  sectioii 
authorized,  each  office  not  so  consolidated  must  be  filled  by  an  election. 

4108.  Oatli,  bond,  and  fees  of  consolidated  offices. 

Sec.  4108.  "When  offices  are  united  and  consolidated  either  by  the  code  or  by 
order  of  the  supervisors,  the  person  elected  to  fill  the  offices  so  united  and 
consolidated  must  take  the  oath  and  give  the  bond  required  for  each,  dis- 
charge all  the  duties  peiiaining  to  each,  and  receive  the  compensation  affixed 
to  the  offices. 

4109.  County  officers,  except,  etc.,  when  elected  and  term  of  office. 

Sec  4109.  All  county  and  township  officers,  excejit  judicial  officers,  assessors, 
and  supei'visors,  must  be  elected  at  the  general  election  held  in  September, 
eighteen  hundred  and  seventy-three,  and  every  two  years  thereafter,  and  hold 
office  for  two  years  from  the  first  Monday  of  March  next  after  their  election; 
and  the  officers  now  holding  shall  continue  in  office  until  the  first  Monday  in 
March,  a.  d.  eighteen  hundred  and  seventy -four,  except  assessors,  as  herein- 
after provided.  Assessors  must  be  elected  at  the  general  election  held  in  Sep- 
tember, eighteen  hundred  and  seventy-five,  and  every  four  years  thereafter, 
and  hold  office  for  four  years  from  the  first  Monday  of  March  next  after  their 
election,  except  that,  in  the  city  and  county  of  San  Francisco,  the  assessor 
holds  his  office  for  the  term  of  four  years  from  the  first  Monday  of  December 
next  after  his  election.  Evei-y  assessor  now  in  office  must  hold  his  office,  and 
exercise  the  duties  thereof,  until  his  successor  is  elected  at  the  general  election 
in  September,  eighteen  hundred  and  seventy-five.  The  provision  of  this  section, 
as  far  as  it  relates  to  the  election  and  term  of  office  of  assessors,  applies  to  every 
county  and  city  in  this  state;  provided,  that  the  term  of  office  of  no  city  and 
county  officer  of  the  city  and  county  of  San  Francisco  shall  be  in  anywise 
affected  by  reason  of  this  act;  and  provided  further,  that  nothing  contained  in 
this  act  shall  operate  to  extend  the  term  of  office  of  the  present  assessor  of 
El  Dorado,  Alameda,  and  San  Joaquin  counties.  [Amendment,  approved  De- 
cember'12,  1873;  J //je7ic/?ne«/.s  1873-4,  178;  took  effect  from  passage. '^^-^ 

An  Act  to  nlxilish  (lie  office  of  county  assessor  iu  the  coniitj-  of  Alameda,  and  to  create  towu- 
8hip  UHKesHfjrH  therein. 

Aipprovfd  Fobniury  10,  1874;  1873-4,  90. 

AssesHora  in  Alameda  county. 

Section  1.  The  term  of  office  of  the  county  assessor  of  Alameda  county  shall 

(n)  Origin*]  Bertlon :  oily  ami  rounty  of  San  FranciBco  the  assessor  liolds  his 

Sec.  41W.  All  county  and  townt-lili.  offlccrs,  except  office  for  the  temi  of  four  years  from  the  first  Moiday 

Jiidii'Ul   omrem.  ii(i>eMMirK  and  hiiiiervlsorR,  iiuiKt  he  of  Doc  iiil,(r  ik  xt  iifter  his  election.     Every  iiSBessor 

H<-.  Jed  at  the  Keiiernl  el.iUoii  liiS<i,i(ii,J„r,  1873,  and  ii<  w  in  (.mce  imiHt  Iiold  his  ofliie  and  exercise  the 

ev<r)  two  yearx  Ihereuft.r.  and  hold  ..ffi.  e  for  two  years  duties  tli.  n  of  iiiilil  his  successor  is  elected  at  the  gen- 

froiii  the  flrht  Monday  of  .Jannai-j  n<  xt  after  their  elec-  era]  (hi  li<  n  in  187.').     The  provision  of  this  section,  so 

tion.     AKM+n.rs  nuist  t)e  .  1.  c  t.<i  at  tin-  K.neial  elec-  far  as  it  relnt<  s  to  the  election  (ind  term  of  office  of  as- 

tlon  In  l^7:.,  ami  ev<  ry  l(  iir  years  thirc  utter,  and  hold  sessors.  ..pijlies  to  every  county,  and  city  and  county 

their  ffllce  for  four  years  from  the  first  Monday  of  in  this  state. 
Januaiy  i.«  xt  after  thtlr  eleiti<  d,  except  that  iu  the 

532 


GOVERNMENT  OF  COUNTIES.  4109 

exi>ire  on  the  first  Monday  of  March,  eighteen  hundred  and  seventy-four,  and 
each  township  in  said  county  shall  thereafter  be  an  assessment  district. 

Township  assesso7'S. 

Sec.  2.  There  shall  be  elected  by  the  quahfied  electors  of  each  township,  at 
the  general  election  in  the  year  eighteen  hundred  and  seventy-iive,  and  at  each 
general  election  thereafter,  an  assessor  for  and  in  each  townsLip  in  said  county. 
Such  assessors  shall  take  their  office  on  the  first  Monday  of  the  month  of  March 
following  the  election. 

Election  and  ter'in  of  office. 

Sec.  3.  There  shall  be  held  a  special  election  for  township  assessors,  as  juo- 
vided  for  in  this  act,  in  said  county,  on  the  third  Saturday  of  Februaiy, 
eighteen  hundred  and  seventy-four,  which  election  shall  be  subject  to  the 
general  election  law;  j^rovided,  however,  that  only  five  days'  notice  of  said 
special  election  shall  be  required,  and  that  the  cojues  of  the  great  register  used 
at  the  general  election  of  eighteen  hundred  and  seventy-three,  shall  be  used  in 
said  special  election.  The  assessors  so  elected  shall  take  their  office  on  the 
first  Monday  of  March,  eighteen  hundred  and  seventy-four,  and  hold  the  same 
until  the  first  Monday  of  March,  eighteen  hundred  and  seventy-six,  and  until 
their  successors  are  elected  and  qualified. 

Qualification. 

Sec.  4.  ,The  township  assessors  shall  give  bonds  and  qualify  as  other  town- 
ship officers,  and  each  bond  shall  be  in  such  sum  as  the  board  of  supervisors  of 
the  county  shall  fix. 

Duties. 

Sec  5.  The  township  assessors,  in  their  several  townships,  shall  discharge 
all  the  duties,  and  be  subject  to  all  the  liabilities,  which  are  or  may  hereafter  be 
required  of  county  assessors.  They  shall,  in  their  respective  townships,  collect 
all  poll  taxes,  for  which  they  shall  receive  ten  per  cent,  of  the  amount  so  col- 
lected; and,  as  assessors,  they  shall  further  receive  six  dollars  each  per  day  for 
each  day  actually  employed  in  making  the  assessment,  and  for  each  day  of 
attendance  on  the  board  of  equalization,  when  their  attendance  is  required  by 
said  board.  For  collecting  personal  property  taxes,  they  shall  receive  the  same 
compensation  as  is  allowed  by  law  to  the  tax  collector  for  similar  services. 
They  shall  have  jDower  to  api)oint  a  deputy,  or  deputies,  the  number  of  whom, 
and  their  compensation,  shall  be  fixed  by  the  board  of  supervisors;  jn-ovided, 
such  deputies  shall  not  receive  compensation  to  exceed  five  dollars  per  day  for 
each  day  actually  employed  in  making  the  assessment. 

Sec  6.  All  acts  in  conflict  herewith  are  hereby  repealed,  and  this  act  shall 
take  eflect  immediately. 

An  Act  regulating  township  offices  iu  Tuolumne  county  [providing  for  but 
one  justice  of  the  peace  and  one  constable  in  each  township],  aj^proved  March 
18,  1874;  1873-4,  453. 

An  Act  to  provide  for  an  additional  justice  of  the  peace  and  constable  for  the 
township  and  county  of  Los  Angeles,  approved  December  22,  1875;  187o-G,  4. 

An  Act  regulating  certain  township  offices  in  the  county  of  Calaveras  [pro- 
viding for  one  justice  of  the  peace  and  one  constable  in  each  township  after 
January  1,  1878 J,  approved  February  28,  187G;  1875-G,  78. 

[The  following  special  acts  in  reference  to  supervisors  may  be  referred  to  as 
in  force  in  the  counties  specified:] 

San  Diego  count]). 

An  Act  to  provide  for  the  government  of  the  county  of  San  Diego,  api^roved 
March  2,  1872;  1871-2,  191. 

533 


4109  POLITICAL  CODE. 

An  Act, to  provide  for  the  governmeut  of  the  county  of  San  Diego,  approved 
Mai-eh  30^  1876;  1875-G,  558. 

Del  yorfe  count i/. 

An  Act  to  change  the  manner  of  electing  supervisors  in  the  county  of  Del 
Norte,  and  prescribing  the  method  thereof,  approved  March  30,  1872;  1871-2, 
75G;  amended  January  2,  187-4;  1873-4,  12. 

Mendocino  county. 

An  Act  amendatory  of  an  act  relating  to  the  boards  of  supervisors  of  the 
counties  of  Napa  and  Mendocino,  approved  April  4,  18C4,  as  far  as  the  same 
applies  to  or  affects  Mendocino  county,  approved  January  23, 1874;  1873-4,  33. 

San  Bernardino  county. 

An  Act  to  provide  for  the  election  of  supenisors  in  the  county  of  San  Ber- 
nardino, approved  February  17,  1874;  1873-4,  111. 

An  Act  to  fix  the  compensation  of  the  ^supervisors  of  San  Bernardino  county, 
approved  March  27,  1870;  1875-G,  488. 

Tuolumne  county. 

An  Act  to  prescribe  the  commencement  of  the  term  of  supervisors  in  the 
county  of  Tuolumne,  approved  Februaiy  24,  1874;  1873-4,  154. 

Napa  county. 

An  Act  to  reorganize  the  board  of  supervisors  of  Napa  county  and  for  other 
puii^oses,  approved  February  25,  1874;  1873-4, 158;  amended  March  10,  1874; 
1873-4,  329. 
Placer  county. 

An  Act  reorganizing  the  board  of  supervisors  in  the  county  of  Placer,  and 
providing  for  the  election  of  the  same,  approved  March  13,  1874;  1873-4,  347; 
amended  March  28,  1874;  1873-4,  775;  amended  March  30,  1876;  1875-6,  573. 

Amador  county. 

An  Act  in  relation  to  the  board  of  supervisors  of  Amador  county,  approved 
March  18,  1874;  1873-4,  443;  affected  by  an  act  to  regulate  salaries,  etc.,  ap- 
proved March  20,  1876;  1875-6,  370. 
San  Joaquin  county. 

An  Act  relating  to  the  supervisors  of  San  Joaquin  county;  approved  March 
18,  1874;  1873-4,  466. 

San  Mateo  county. 

An  Act  to  prescribe  the  duties  and  provide  the  salary  of  certain  offices  of  San 
Mateo  county,  to  authorize  the  issue  of  bonds  for  road  purposes,  and  other 
matters   relating  thereto,  approved  March  18,  1874;    1873-4,  479;    amended 
March  28,  1874;  1873-4,  779. 
Santa  Clara  county. 

An  Act  in  relation  to  the  county  officers,  of  Santa  Clara  county,  their  fees, 
and  salaries,  approved  February  9,  1876;  1875-6,  35. 

Tehama  county. 

An  Act  to  redi«trict  the  county  of  Tehama,  and  to  reorganize  the  board  of 
Kui)en-isor8  in  and  for  said  county,  approved  March  30,  1874;  1873-4,  816. 

El  Dorado  county. 

An  Act  to  organize  the  board  of  supervisors  and  define  their  duties  in  the 
connty  of  El  Dorado,  api)rovcd  March  30,  1874;  1873-4,  872. 

An  Act  to  create  a  boiird  <jf  auditors  for  El  Dorado  county,  and  fix  the  powers 
thereof,  approved  :Mar(h  30,  1874;  1873-4,825;  amended  April  1, 1876;  1875-6, 
C81. 

534 


GOVERNMENT  OF  COUNTIES.  4iu;)-4115 

Monterey  connhj. 

An  Act  fixing  the  terms  of  the  members  of  the  hoard  of  supervisors  of  IVIon- 
terey  county,  and  for  other  purposes,  ap^n-oved  March  3,  187G;  1875-(5,  124. 
Calaveras  county. 

An  Act  concerning  the  offices  of  supervisor  and  district  attorney  in  the  county 
of  Calaveras,  approved  March  7, 187G;  1875-G,  141. 
Ilianboldt  county. 

An  Act  fixing  the  number  of  supervisors  of  Humboldt  county,  appi-oved 
March  18,  1876;  1875-6,  333. 

San  Luis  Obispo  county. 

An  Act  to  reorganize  the  board  of  supervisors  of  San  Luis  Obispo  county,  and 
to  provide  for  the  election  of  the  same,  approved  March  27,  1876;  1875-6,  493. 
Santa  Cruz  county. 

An  Act  in  relation  to  the  county  officers  of  Santa  Cruz  county,  their  fees  and 
salaries,  approved  March  30,  1876;  1875-6,  576. 
Lake  county. 

An  Act  concerning  county  officers  of  Lake  county,  and  to  regulate  the  fees 
and  salaries  thereof,  approved  March  31,  1876;  1875-6,  599. 
Sonoma  county. 

An  Act  to  amend  an  act  entitled  An  Act  to  regiilate  the  salaries  and  fix  the 
compensation  of  certain  county  officers  in  the  county  of  Sonoma,  approved 
April  1,  1876;  1875-6,  726. 

The  act  amended  was  approved  March  16,  1874;  1873-4,  382. 
Butte  county. 

An  Act  to  amend  an  act  entitled  An  Act  to  fix  the  salaries  and  compensation 
of  certain  officers  of  Butte  county',  aj^proved  March  27, 1874;  approved  April  3, 
1876;  1875-6,  906. 

4110.  County  judges  and  justices  election,  and  term  of  office. 

Sec  4110.  The  election  and  terms  of  office  of  county  judges  and  justices  of 
the  i^eace  are  j^rovided  for  in  Title  I  of  the  Code  of  Civil  Procedure.  [See  jiost, 
10,083  and  10,113.] 

4111.  Supervisors,  when  elected. 

Sec.  4111.  In  counties  of  the  third  class  one  supervisor  is  elected  each  year 
at  the  general  election  when  it  occurs,  and  on  the  corresponding  day  of  the  al- 
ternate year  when  no  general  election  occurs;  in  the  counties  of  the  first  aud 
second  classes  a  number  of  supervisors  as  nearly  equal  as  may  be,  to  be  deter- 
mined by  the  board,  are  elected  every  year  at  the  same  times  as  si^ecified  herein 
for  counties  of  the  third  class. 

4112.  May  appoint  deputies. 

Sec  4112.  Every  county  and  township  officer,  except  county  judge,  super- 
visor, and  justice  of  the  peace,  may  a^jpoint  as  many  deputies  as  may  be  neces- 
sary for  the  faithful  and  prompt  discharge  of  the  duties  of  his  office. 

4113.  Same. 

Sec  4113.  The  appointment  of  deputies,  clerks,  and  subordinate  officers  of 
counties,  districts,  and  townships,  must  be  made  in  wiiting,  and  filed  in  the 
office  of  the  county  clerk. 

4114.  Official  name  of  principal  officer  includes  deputies. 

Sec  4114.  "Whenever  the  official  name  of  any  principal  officer  is  used  in  any 
law  conferring  power,  imposing  duties  or  liabilities,  it  includes  his  deputies. 

4115.  Vacancies,  hov)  filled. 

Sec  4115.  A  vacancy  in  the  office  of  county  judge  is  filled  by  an  appointee 

535 


4113-41-2-2  POLITICAL  CODE. 

of  the  cTovernor.  All  other  vacancies  in  county  and  township  offices  are  filled 
by  appointments  made  by  the  board  of  supervisors.  Appointees  hold  until  the 
vacancies  are  filled  by  election. 

4116.  What  offices  to  be  kept  at  county  seat. 

Sec.  411(5.  Sheiiffs,  clerks,  recorders,  treasurers,  tax  collectors,  district  at- 
turuevs,  and  auditors,  must  have  their  offices  at  the  county  seat,  and  keep  them 
open  fur  the  transaction  of  business  from  nine  o'clock  a.  m.  till  five  o'clock 
1'.  M.,  eveiT  day  in  the  year,  except  holidays.  The  county  judge  must  have 
chambei-s  at  the  county  seat,  and  must  establish  such  rules  and  hours  for  offi- 
cial business  as  may  be  necessary  for  the  dispatch  thereof.  He  must  attend  at 
his  chambers  at  least  one  day  in  each  week. 

4117.  Civil  penalty  for  non-performance  of  duly  aHached  to  official  bond. 

Sec.  4117.  Whenever,  except  in  criminal  prosecutions,  any  special  penalty, 
forfeiture,  or  liability  is  imposed  on  any  officer  for  non-performance,  or  mal- 
performance  of  official  duty,  the  liability  therefor  attaches  to  the  official  bond 
of  such  officer,  and  to  the  principal  and  sureties  thereon. 

4118.  County  officers  may  administer  oaOis. 

Sec.  4118.  Every  officer  mentioned  in  section  4103,  and  ever}^  justice  of  the 
]ieace,  may  administer  and  certify  oaths. 

4119.  Certain  officers  must  reside  at  county  seat. 

Sec.  4119.  The  following  officers  must  reside  at  the  county  seat  of  their  re- 
spective counties:  the  county  judge,  the  treasurer,  the  county  clerk,  the  aud- 
itor, the  sheriff,  the  tax  collector,  the  district  attorney,  the  recorder. 

4120.  Absejice  of  county  officer  from  state. 

Sec.  4120;  A  county  officer  shall  in  no  case  absent  himself  from  the  state  for 
a  period  of  more  than  sixty  days,  and  for  no  period  without  the  consent  of  the 
board  of  supervisors  of  his  county.  [Amendment,  approved  February  10,  1876; 
Amendments  1875-6,  Go;  took  effiect  from  passage. '■'■^ 

4121.  Certain  officers  prohibited  from  practicing  law. 

Skc.  4121.  Sheriffs,  clerks,  and  constables  and  their  deputies  are  prohibited 
from  practicing  law  or  acting  as  attorneys  or  counselors  at  law,  or  having  as  a 
I)artner  a  lawj-er  or  any  one  who  acts  as  such. 

4122.  Official  bond  classified  and  amounts  therefor. 

Sec  4122.  County  officers  must  execute  official  bonds  corresponding  to  the 
class  of  the  county  of  which  they  are  officers,  in  the  following  amounts: 

1.  Slieriffs,  first  class,  sixty  thousand  dollars;  second  class,  twenty-five  thou- 
sand dollars;  third  class,  ten  thousand  dollars. 

2.  ("k-rks,  first  class,  twenty-five  thovisand  dollars;  second  class,  fifteen  thou- 
sand dollars;  third  class,  six  thousand  dollars. 

3.  Auditors,  first  class,  twenty  thousand  dollars;  second  class,  ten  thousand 
dollarK;  third  class,  two  thousand  dollars. 

4.  Treasurers,  first  class,  one  hundred  thousand  dollars;  second  class,  eighty 
thousand  dollars;  third  class,  sixty  thousand  dollars. 

5.  Recorders,  first  class,  ten  thousand  dollars;  second  class,  five  thousand 
dollars;  third  class,  two  thousand  dollars. 

G.  District  attornoys,  first  class,  fifteen  thousand  dollars;  second  class,  ten 
thousand  dollars;  third  class,  two  thousand  dollars. 

7.  Assessors,  first  class,  twenty  thousand  dollars;  second  class,  ten  thousand 
dollars;  third  class,  throe  thousand  dollars. 

(a)  OrigJnsl  fK-rtlon:  It  was  previously  anicmled  by  act  of  March  3, 1874; 

Skc.  41'Jii.  No  county  offln-r  tirny  abmntlilmmlf  from  Am<-n(liiiciiiK  lH7:t-t,  174,  so  as  to  read  like  the  orl'<inal 

the  state  for  more  than  thirty  dayH,  uulcbH  with  the  dowu  to  aud  iucludiiig  the  words  "  thirty  days." 
consent  of  the  IcgUlature. 

53G 


GOVERNMENT  OF  COUNTIES.  4122 

8.  Tax  collectors,  first  class,  fifty  thousand  dollars;  second  class,  thirty  thou- 
sand dollars;  third  class,  fifteen  thousand  dollars. 

9.  Surveyors,  first  class,  ten  thousand  dollars;  second  class,  five  thousand  dol- 
lars; third  class,  one  thousand  dollars. 

10.  School  sujjerintendents,  first  class,  five  thousand  dollars;  second  class, 
three  thousand  dollars;  third  class,  one  thousand  dollars. 

11.  Coroners,  first  class,  five  thousand  dollars;  second  class,  two  thousand 
dollars;  third  class,  one  thousand  dollars.  • 

12.  Public  administrators,  first  class,  thirt}'  thousand  dollars;  second  class, 
twenty  thousand  dollars;  third  class,  ten  thousand  dollars. 

13.  Supervisors,  first  class,  fifteen  thousand  dollars;  second  class,  ten  thou- 
sand dollars;  third  class,  two  thousand  dollars.  [Amendment,  approved  March 
30,  1874;  Amendmeiits  1873-4,  5G;  took  effect  July  G,  1874.^''> 

An  Act  couceruing  certain  officers?  iu  the  countj'  of  Merced. 

Approved  January  10,  1872;  1871-2,  21. 

[This  act  fixes  the  bonds  of  the  ])ublic  administrator  and  coroner  of  the 
county  of  Merced  at  five  thousand  dollars  each,  provided  the  board  of  super- 
visors might  order  special  bonds  in  addition  thereto,  if  iu  their  ju'dgment  such 
additional  bonds  become  necessary.] 

An  Act  to  fix  the  bonds  of  the  sheriff  of  the  county  of  Contra  Costa. 
Approved  February  26,  1872  ;  1871-2, 158. 

[This  act  fixes  the  bond  of  the  sheriff  of  Contra  Costa  county  at  twenty 
thousand  dollars.] 

An  Act  concerning  official  bond  of  public  administrator  of  Contra  Costa  county. 
Approved  March  1,  1872;  1871-2,  183. 

[This  act  fixes  the  bond  of  the  public  administrator  of  Contra  Costa  county 
at  five  thousand  dollars,  provided  the  board  of  supervisors  may  order  a  special 
bond  in  addition  thereto,  if  in  their  judgment  such  additional  bond  becomes 
necessary.] 

[The  ofiicial  bonds  of  officers  in  El  Dorado  county  were  fixed  by  the  fee  bill 
of  March  27,  1872;  1871-2,  594.] 

An  Act  to  fix  the  bonds  of  the  tax  collectors  of  Fresno,  Tulare,  and  Kern  counties. 
Approved  January  28,  1876;  1875-6,  16. 

[This  act  provides  that  the  boards  of  suj)ervisors  of  the  counties  named  in  the 
title  shall  fix  the  amount  of  the  bonds  of  the  tax  collectors  in  the  counties 
named,  provided  that  no  one  of  said  bonds  shall  be  fixed  in  a  sum  less  than 
fifty  thousand  dollars  or  greater  than  one  hundred  thousand  dollars.] 

An  Act  fixing  the  bonds  of  the  county  treasurers  of  the  counties  of  Mariposa,  Tuolumne,  and 

Calaveras. 

Approved  January  28,  1876;  1875-6,  17. 

[This  act  exempts  the  counties  named  from  the  provisions  of  section  4122  of 
the  Political  Code,  as  amended  March  30,  1874,  so  far  as  relates  to  the  county 
treasurers,  and  fixes  their  bonds  at  twenty-five  thousand  dollars.] 

An  Act  in  relation  to  the  offices  of  coroner  and  public  administrator  of  the  county  of  Santa 
Cruz. 

Approved  March  3,  1876;  1875-6,  121. 

[This  act  was  to  legalize  the  official  bond  and  oath  of  the  coroner  and  public 
administrator  of  the  county  named,  elected  at  the  general  election  of  1875.] 

(a)  The  original  section  in  the  fourth  subdivision  instead  of  "eighty"  had  "  fifty,"  and  instead  of  "sixty"  it 
had  "twenty." 

537 


4122-4U4  POLITICAL  CODE. 

An  Act  to  fix  the  penal  sum  of  the  official  bond  of  the  treasurer  of  the  eouuty  of  Alpine, 
Approved  March  C,  1876;  1875-6,  140. 

[This  act  fixed  the  amount  of  the  bond  referred  to  at  fifteen  thousand 
dollars.  ] 

An  Act  to  fix  the  amount  of  the  bonds  of  the  county  treasurer  of  Modoc  and  Lassen  counties. 
Approved  March  8,  1875;  1875-6,  154. 

[This  act  fixed  the  %mouut  of  the  bond  of  the  treasurer  of  Modoc  at  thirty 
thousand  dollars,  and  that  of  the  treasurer  of  Lassen  at  forty  thousand 
dollars.  ] 

An  Act  to  fix  the  salary  and  bond  of  the  assessors  of  the  counties  of  Tulare  and  Kern. 
Approved  March  9,  1876;  1875-6,  172. 

[This  act  provided  that  the  bonds  referred  to  should  be  fixed  from  time  to 
time  "by  the  board  of  supervisors  of  said  counties,  in  such  sum  as  they  shall 
deem  necessary,"  but  "said  bond"  is  not  to  be  fixed  at  a  less  sum  than  four 
thousand  dollars.] 

Au  Act  to  jirovide  for  the  government  of  the  county  of  San  Diego. 

Approved  March  30,  1876;  1875-6,  558.  * 

[This  act  provided  that  the  board  of  supervisors  should  fix  the  amount  of  the 
bonds  of   all  county,  district,  and  toAvnship  officers.] 

4123.  Wlien  amount  of  bond  is  not  fixed  by  law. 

Sec.  4123.  When  the  amount  of  the  bond  to  be  given  by  any  county  or  town- 
ship officer  is  not  fixed  by  law,  the  amount  must  be  fixed  by  the  board  of  super- 
visors. 

4124.  Other  provisions  relating  to  county  officers. 

Sec.  4124.  Other  provisions  relating  to  the  different  classes  of  officers  are 
contained  in  Chapter  VII,  Title  I  of  Part  III  of  this  Code.    [See  ante,  841.] 

ARTICLE  II. 

COUNTY    JUDGE. 

4134 .  Duty  of  cou n ty  j u dge . 

Sec.  4134.  The  county  judge  must: 

1.  Perform  the  duties  of  a  magistrate; 

2.  Hold  county  and  probate  courts; 

3.  Take  and  certify  acknowledgments  to  the  execution  of  instruments  in 
writing,  and  grant  certificates  to  the  official  character  of  the  county  clerk; 

4.  Certify  to  the  ownership  of  wrecked  property  or  its  proceeds;  and 

5.  Perform  such  other  duties  as  are  prescribed  in  any  of  the  laws  of  this 
state. 

ARTICLE  III. 

COUNTY    TKEASUKEK. 

4144.    /hily  of  couuty  treasurer. 

Sec.  4144.  The  county  treasurer  must: 

1.  Receive  all  moneys  belonging  to  the  county,  and  all  other  moneys  by  law 
directed  to  be  paid  to  him,  safely  keep  the  same,  and  apply  and  pay  them  out, 
rendering  account  thereof  as  rcfjuired  l)y  law; 

2.  File  and  keep  the  certificates  of  the  auditor  delivered  to  him  when  moneys 
are  paid  into  the  treasury; 

3.  Keep  an  account  of  the  receipt  and  expenditure  of  all  such  moneys,  in 
books  provided  lot  the  purpose;  in  which  must  be  entered  the  amount,  the 
time  when,  from  whom,  and  on  what  account  all  moneys  were  received  by  him; 

538 


GOVEENMENT  OF  COUNTIES.  4144-4151 

the  amount,  time  -when,  to  whom,  and  ou  ^vhat  account  all  disbursements  were 
made  by  him; 

4.  So  keep  his  books  that  the  amounts  received  and  paid  out  on  account  of 
sei^arate  funds  or  specific  appropriations  are  exhibited  in  separate  and  distin(;t 
accounts,  and  the  whole  receijits  and  expenditures  shown  in  one  general  or 
cash  account; 

5.  Enter  no  moneys  received  for  the  cun-ent  year  on  his  account  with  the 
county  for  the  past  fiscal  year,  until  after  his  annual  •settlement  for  the  past 
year  has  been  made  with  the  county  auditor; 

6.  Disburse  the  county  moneys  only  on  county  warrants  issued  by  the  county 
auditor,  based  on  orders  of  the  board  of  supervisors,  or  as  otherwise  provided 
by  law. 

4145.  To  receive  no  money,  except  on  certificate  of  auditor. 

Sec.  4145.  He  must  receive  no  money  into  the  treasury  unless  accompanied 
by  the  certificate  of  the  auditor  provided  for  in  section  4217. 

4146.  Must  receipt  for  money. 

Sec.  4146.  When  any  money  is  paid  to  the  county  treasurer  he  must  give 
to  the  person  joaying  the  same  a  receipt  therefor,  which  must  forthwith  be 
deposited  with  the  county  auditor,  who  must  charge  the  treasurer  therewith 
and  give  the  person  paying  the  same  a  receipt. 

4147.  Ilode  of  redeeming  warrants. 

Sec  4147.  "When  a  warrant  is  presented  for  payment,  if  there  is  money  in  the 
treasui-y  for  that  purpose,  he  must  pay  the  same,  and  write  on  the  face  thereof 
"Paid,"  the  date  of  payment,  and  sign  his  name  thereto. 

4148.  Registry  of  loarrants,  tvhen  no  funds. 

Sec.  4148.  When  any  warrant  is  presented  to  the  treasurer  for  payment  and 
the  same  is  not  paid  for  want  of  funds,  the  treasurer  must  indorse  thereon, 
"  Not  paid  for  want  of  funds,"  annexing  the  date  of  presentation,  and  sign  his 
name  thereto;  and  from  that  time  until  paid  the  warrant  bears  seven  per  cent, 
per  annum  interest. 

4149.  Notice  of  redemption  of  ivarrants. 

Sec.  4149.  When  there  are  sufficient  moneys  in  the  treasury  to  pay  the  wan-ants 
drawing  interest,  the  treasurer  must  give  notice  in  some  newspaper  published 
in  his  county,  or,  if  none  is  published,  then  by  written  notice  posted  upon  the 
court-house  door,  stating  therein  that  he  is  ready  to  pay  such  waiTants.  From 
the  first  publication  or  posting  of  such  notice  such  warrants  cease  to  draw 
interest. 

4150.  What  it  must  state,  and  hoiv  published. 

Sec  4150.  In  advertising  warrants  under  the  provisions  of  this  section  in  any 
newspaper,  the  treasurer  must  not  publish  the  warrants  in  detail,  but  give  notice 
only  that  county  warrants  presented  for  payment  prior  to  such  a  date,  stated  in 
the  notice,  are  payable.  When  a  part  only  of  the  warrants  presented  for  pay- 
ment on  the  same  day  are  payable,  the  treasurer  must  designate  such  payable 
warrants  in  the  advertisement. 

4151.  Priority  in  payment  of  warrants. 

Sec.  4151.  Warrants  drawn  on  the  treasury  and  i^roperly  attested  are  entitled 
to  preference  as  to  payment  out  of  moneys  in  the  treasury  properly  applicable 
to  such  warrants  according  to  the  priority  of  time  in  which  they  were  jiresented. 
The  time  of  presenting  such  warrants  must  be  noted  by  the  treasurer,  and  upon 
the  receipt  of  moneys  into  the  treasury  not  otherwise  appropriated,  he  must 
set  apart  the  same  or  so  much  thereof  as  is  necessary  for  the  payment  of  such 
warrants. 

539 


4152-4159  POLITICAL  CODE. 

4152.  Funds  reserved  fiixtij  days  therefor. 

Sec.  4152.  Slioukl  such  warrants  not  be  re-presented  for  payment  within  sixty 
days  from  the  time  of  the  notice  hereinbefore  provided  for  is  given,  the  fund 
set  aside  for  the  paj'ment  of  the  same  must  be  by  the  treasurer  applied  to  the 
paAnnent  of  unpaid  warrants  next  in  order  of  registiy.  The  board  of  super- 
visoi-s  may,  on  application  and  presentation  of  warrants  properly  indorsed, 
Avhich  have  been  advertised,  pass  an  order  directing  the  treasurer  to  pay  them 
out  (.)f  any  money  in  the  treasury  not  otherwise  appropriated. 

4153.  Ma^t  note  the  interest  paid  on  loarrant. 

Skc.  4153.  When  the  treasurer  pays  any  warrant  on  which  any  interest  is  due 
he  must  note  on  the  wan-ant  the  amount  of  interest  paid  thereon,  and  enter  on 
his  account  the  amount  of  such  interest  distinct  from  the  principal. 

4154.  Settlements,  when  and  hotc  made — mouthhj  and  annually. 

Sec.  4154.  The  treasurer  must  settle  his  accounts  relating  to  the  collection, 
care,  and  disbursement  of  public  revenue,  of  whatsoever  nature  and  kind,  with 
the  auditor,  on  the  first  Monday  of  each  month.  For  the  purpose  of  making 
such  settlement  he  must  make  out  a  statement,  under  oath,  of  the  amount  of 
money  or  other  property  received  prior  to  the  period  of  such  settlement,  the 
sources  whence  the  same  was  derived,  the  amount  of  payments  or  disburse- 
ments, and  to  whom,  with  the  amount  remaining  on  hand.  He  must,  in  such 
settlements,  deposit  all  wan-ants  redeemed  hy  him  and  take  the  auditor's  re- 
ceipt therefor.  He  must  also  make  a  full  settlement  of  all  accounts  with  the 
auditor  annually  on  the  first  Monday  of  January,  in  the  presence  of  the  super- 
visors, who  have  a  supervisory  control  thereof. 

4155.  Bi'port  to  hoard  of  supervisors  each  session. 

Sec.  4155.  Each  count}'  treasurer  must  make  a  detailed  report,  at  every  reg- 
ular meeting  of  the  board  of  supervisors  of  his  count}',  of  all  moneys  received 
Ijy  him  and  the  disbursement  thereof,  and  of  all  debts  due  to  and  from  the 
county,  and  of  all  other  proceedings  in  his  office,  so  that  the  receipts  into  the 
treasury  and  the  amount  of  disbursements,  together  with  the  debts  due  to  and 
from  the  county,  may  clearl}'  and  distinctly  appear. 

4156.  Pi'ttalfy/or  not  reporting. 

Si.i'.  415G.  If  any  county  treasurer  neglects  or  refvises  to  settle  or  report,  as 
rcfpiired  in  sections  4154,  4155,  he  forfeits  and  must  pay  to  the  county  the  sum 
of  five  hundred  dollars  for  every  such  neglect  or  refusal,  and  the  board  of 
supervisors  must  institute  suits  for  the  recovery  thereof. 

4157.  When  he  must  sue  district  attorney. 

Si.c.  4157,  If  the  district  attorney  refuses  or  neglects  to  account  for  and  pay 
'>ver  money  received  by  him,  as  required  by  the  fifth  subdivision  of  section 
425G,  tlie  county  treasurer  must  bring  an  action  against  him  for  the  recovery 
thereof  in  the  name  of  the  county,  and  may  recover  in  such  action,  in  addition 
to  the  amount  so  received,  fifty  per  cent,  thereon  by  way  of  damages. 

4158.  When  he  inuxt  sue  coroner. 

Sic.  4158.  If  the  coroner,  or  any  justice  of  the  peace  acting  as  coroner,  fails 
to  deliver  to  the  treasurer  within  thirty  days  after  any  inquest  upon  a  dead  body, 
all  money  and  property  found  upon  such  body,  unless  claimed  in  the  meantime 
by  tlie  public  administnitor  or  other  legal  representative  of  the  decedent,  as 
required  liy  section  42H7,  the  treasurer  must  proceed  against  the  coroner,  or 
justice  acting  as  coroner,  to  recover  the  same  by  civil  action  in  the  name  of  the 
county. 

4159.  What  hr  nvi.'^t  do  vith  prnpcrty  rt'ceived  from  coroner. 

Sec.  415'J.  The  treasurer,  ui)on  receiving  from  the  coroner  or  justice  acting 

540 


GOVERNMENT  OF  COUNTIES.  4ir,9-il7G 

as  coroner,  money  found  on  a  dead  l)ody,  must  place  it  to  the  credit  of  the 
county.  On  receiving-  other  property  in  like  manner,  he  must  within  thii-ty 
days  sell  it  at  public  auction  upon  reasonable  public  notice,  and  must  in  like 
manner  place  the  proceeds  to  the  credit  of  the  county. 

4160.  3Ioney  fi'om  coroner  in  treasury  may  he  demanded  tvifhin  six  years. 

Sec.  41G0.  If  the  money  in  the  treasury  is  demanded  within  six  years  by  the 
legal  representatives  of  the  decedent,  the  treasurer  must  pay  it  to  them,  after 
deducting  the  fees  and  expenses  of  the  coroner  and  of  the  county  in  relation  to 
the  matter;  or  the  same  may  be  so  paid  at  any  time  thereafter  upon  the  order 
of  the  board  of  supervisors. 

4161.  Treasurer  must  not  loan  public  money  or  make  general  deposit. 

Sec.  41G1.  The  county  treasiirer  must  keep  all  moneys  belonging  to  this  state 
or  to  any  county  of  this  state  in  his  own  possession  until  disbursed  according 
to  law.  He  must  not  place  the  same  in  the  possession  of  any  person,  to  be  used 
for  any  purpose;  nor  must  he  loan  or  in  any  manner  use  or  permit  any  person 
to  use  the  same,  except  as  provided  by  law;  but  nothing  in  this  section  prohibits 
him  from  making  special  deposits  for  the  safe  keeping  of  the  public  moneys. 

4162.  Su2:>ervisors  may  suspend  treasurer. 

Sec.  4162.  Whenever  an  action  based  upon  official  misconduct  is  commenced 
against  anj'  county  treasurer,  the  supervisors  may,  in  their  discretion,  suspend 
him  from  office  until  such  suit  is  determined,  and  may  appoint  some  person  to 
fill  the  vacancy. 

4163.  No  commissions  alloived. 

Sec  4163.  In  case  of  the  death  of  any  county  treasurer,  his  legal  representa- 
tives must  deliver  up  all  official  moneys,  books,  accounts,  papers,  and  documents 
which  come  into  their  possession.  No  percentage  must  be  allowed  to  the  treas- 
urer on  any  money  by  him  received  from  his  predecessor  in  office,  or  from  the 
legal  representatives  of  such  predecessor. 

4164.  Books  and  vouchers  subject  to  inspection. 

Sec.  4164.  The  books,  accounts,  and  vouchers  of  the  treasurer  are  at  all  times 
subject  to  the  inspection  and  examination  of  the  board  of  supervisors  and  grand 
jury. 

4165.  Treasurer  must  permit  auditor  to  examine  his  books,  etc. 

Sec.  4165.  The  treasurer  must  permit  the  county  judge  and  auditor  to  examine 
his  books  and  count  the  money  in  the  treasury  whenever  they  may  wish  to  make 
an  examination  or  counting. 

ARTICLE  IV. 

SHEKIFF. 

4175.  "  Process"  and  "notice"  defined. 

Sec  4175.  "Process,"  as  used  in  this  article,  includes  all  writs,  warrants, 
summons,  and  orders  of  courts  of  justice  or  judicial  officers.  "  Notice"  in- 
cludes all  papers  and  orders  (except  process)  required  to  be  sei-ved  in  any  pro- 
ceeding before  any  court,  board,  or  officer,  or  when  required  by  Iuav  to  be 
served  independently  of  such  proceeding. 

4176.  Duties  of  sheriff . 

Sec  4176,  The  sheriff  must: 

1.  Preserve  the  peace; 

2.  Arrest  and  take  before  the  nearest  magistrate,  for  examination,  all  persons 
who  attempt  to  commit  or  who  have  committed  a  public  offense; 

3.  Prevent  and  suppress  all  affrays,  breaches  of  the  peace,  riots,  and  insur- 
rections which  may  come  to  his  knowledge; 

541 


41TC-4182  POLITICAL  CODE. 

4.  Attend  all  courts,  excejit  justices',  probate,  and  jwlice  courts,  at  their 
respective  terms,  held  wilhiu  Lis  county,  and  obey  their  lawful  orders  and  direc- 
tions; 

5.  Command  the  aid  of  as  many  male  inhabitants  of  his  county  as  he  may 
think  necessary  in  the  execution  of  these  duties; 

G.  Take  charge  of  and  keep  the  county  jail  and  the  prisoners  therein; 

7.  Indorse  upon  all  process  and  notices  the  year,  month,  day,  hour,  and 
minute  of  reception,  and  issue  therefor  to  the  person  delivering  it,  on  payment 
of  fees,  a  certificate  showing  the  names  of  the  jjarties,  title  of  paper,  and  time 
of  reception; 

8.  Serve  all  process  and  notices  in  the  manner  prescribed  by  law; 

9.  Certify  under  his  hand  upon  process  or  notices  the  manner  and  time  of 
service,  or,  if  he  fails  to  make  service,  the  reasons  of  his  failure,  and  return  the 
sanie  without  delay. 

4177.  Seri'ice  and  execution  of  process. 

Sec.  4177.  "SVhen  jjrocess  or  notices  are  returnable  to  another  county,  he  may 
inclose  such  process  or  notice  in  an  envelope,  addressed  to  the  officer  from  whom 
the  same  emanated,  and  deposit  it  in  the  post-office,  prepaying  postage.  • 

4178.  Ji'txrn  prima  facie  evidence. 

Si:c.  4178.  The  return  of  the  sheriff  upon  process  or  notices  is  prima  facie 
evidence  of  the  facts  in  such  return  stated.  [Amendment,  approved  3IarcJb  30, 
ls74;  Amendments  1873-4,  57;  took  effect  July  G,  1874.^"^ 

4179.  Penaltij  for  non-return  of  process,  etc. 

Shc.  4179.  If  the  sheriff  does  not  return  a  notice  or  jorocess  in  his  possession 
with  the  necessaiy  indorsement  thereon  without  delay,  he  is  liable  to  the  party 
aggrieved  for  the  sum  of  two  hundred  dollars  and  for  all  damages  sustained  by 
him. 

4180.  Liable  for  refusing  to  levy. 

Sec  4180.  If  the  sheriff  to  whom  a  writ  of  execution  is  delivered  neglects  or 
refuses,  after  being  required  by  the  creditor  or  his  attorney,  to  levy  ujion  or  sell 
any  jiroperty  of  the  party  charged  in  the  writ  which  is  liable  to  be  levied  upon 
and  sold,  he  is  liable  to  the  creditor  for  the  value  of  such  property. 

4181.  Damayi'sfor  r<f  using  to  pay  over  motwy. 

Si;c.  4181.  If  he  neglects  or  refuses  to  pay  over  on  demand,  to  the  person  en- 
titled thereto,  any  money  which  may  come  into  his  hands  by  virtue  of  his 
oflice  (after  deducting  his  legal  fees),  the  amount  thereof,  with  twenty-five  per 
cent,  damages  and  interest  at  the  rate  of  ten  per  cent,  per  month  from  the  time 
of  d<Mmnd,  may  be  recovered  by  such  person. 

4182.  Li (dAc  for  permitting  an  escape. 

Skc.  4182.  A  sheriff  who  suffers  the  escape  of  a  j^erson  arrested  in  a  civil 
action,  without  the  ronsentor  connivance  of  the  party  in  whose  behalf  the  arrest 
or  imprisonment  was  made,  is  liable  as  follows: 

1 .  When  the  arrest  is  upon  an  order  to  hold  to  bail  or  upon  a  surrender  in 
■    unci  at  ion  of  bail  before  judgment,  he  is  liable  to  the  plaintiff  as  bail; 

1.  When  the  arrest  is  on  an  execution  or  commitment  to  enforce  the  payment 
of  nif)ney,  he  is  liable  for  the  amount  expressed  in  the  execution  or  cummit- 
ment; 

3.  When  the  an-est  is  on  an  execution  or  commitment  other  than  to  enforce 
the  paynicnt  of  money,  he  is  liable  for  the  actual  damages  sustained; 

4.  Upon  being  sued  for  damages  for  an  escajie  or  rescue  he  may  introduce 
evidence  in  mitigation  and  exculpation. 

(a)  The  original  ncctlon  used  the  word  "  primary  "  iniitead  of  "  prima  facie." 

542 


GOVERNMENT  OF  COUNTIES.  4183-4192 

4183.  Liable  for  a  rescue. 

Sec.  4183,  He  is  liable  for  a  rescue  of  a  person  arrested  in  a  civil  action 
equally  as  for  an  escape. 

4184.  No  action  for  escape  or  rescue  after  recapture. 

Sec.  4184.  An  action  cannot  be  maintained  against  the  sheriff  for  a  rescue,  or 
for  an  escape  of  a  person  arrested  upon  an  execution  or  connnitnient,  if,  after 
his  rescue  or  escape  and  before  the  commencement  of  the  action,  the  prisoner 
returns  to  the  jail,  or  is  retaken  by  the  sheriff. 

4185.  Direction  to  sheriff  must  he  in  loriting. 

Sec  4185.  No  direction  or  authority  by  a  party  or  his  attonie}'-  to  a  sheriff, 
in  respect  to  the  execution  of  process  or  return  thereof,  or  to  any  act  or  omission 
relating  thereto,  is  available  to  discharge  or  excuse  the  sheriff  from  a  liability 
for  neglect  or  misconduct,  unless  it  is  contained  in  a  writing,  signed  by  the 
attorney  of  the  party,  or  by  the  party  if  he  has  no  attorney. 

4186.  Wlien  office  of  sher-iff  deemed  vacant. 

Sec.  4186.  When  the  sheriff  is  committed  under  an  execution  or  commitment, 
for  not  paying  over  money  received  by  him  by  virtue  of  his  office,  and  remains 
committed  for  sixty  days,  his  office  is  vacant. 

4187.  When  sheriff  justified  in  executing  2^rocess. 

Sec.  4187.  A  sheriff,  or  other  ministerial  officer,  is  justified  in  the  execution 
of  and  must  execute  all  process  and  orders  regular  on  their  face  ami  issued  by 
competent  authority,  whatever  may  be  the  defect  in  the  proceedings  upon 
which  they  were  issued. 

4188.  Officer  to  exhibit  process. 

Sec.  4188.  The  officer  executing  process  must  then,  and  at  all  times  subse- 
quent, so  long  as  he  retains  it,  upon  request  show  the  same,  with  all  papers 
attached,  to  any  person  interested  therein. 

4189.  Sheriff  to  act  as  crier. 

Sec.  4189.  The  sheriff  in  attendance  upon  court  must  act  as  the  crier  thereof, 
call  the  parties  and  witnesses,  and  all  other  persons  bound  to  ajipcnr  at  the 
court,  and  make  proclamation  at  the  opening  and  adjournment  of  the  court, 
and  of  any  other  matter  under  its  direction. 

4180.  Service  on  sheriff,  how  made. 

Sec.  4190.  Service  of  a  paper,  other  than  process,  upon  the  sheriff  may  be 
made  by  delivering  it  to  him  or  to  one  of  his  deputies,  or  to  a  j)erson  in  charge 
of  the  office  during  office  hours,  or  if  no  such  person  is  there,  by  leaving  it  in 
a  conspicuous  place  in  the  office. 

4191.  Coroner  to  execute  i^rocess  when  sheriff  a  party. 

Sec  4191.  AVhen  the  sheriff  is  a  j^arty  to  an  action  or  proceeding,  the  pro- 
cess and  orders  therein,  which  it  would  otherwise  be  the  duty  of  the  sheriff  to 
execute,  must  be  executed  by  the  coroner  of  the  county. 

4192.  Elisors  to  act  in  cases  designated. 

Sec  4192.  Process  and  orders  in  an  action  or  proceeding  may  be  executed 
by  a  person  residing  in  the  county,  designated  by  the  court,  the  judge  thereof, 
or  a  county  judge,  and  denominated  an  elisor,  in  the  following  cases: 

1.  When  the  sheriff  and  coroner  are  both  parties; 

2.  When  either  of  these  officers  is  a  party  and  the  process  is  against  the 
other;  and 

3.  When  either  of  these  officers  is  a  party  and  there  is  a  vacancy  in  the  office 
of  the  other,  or  when  it  appears  by  affidavit  to  the  satisfaction  of  the  court  in 
which  the  j^roceeding  is  pending,  or  to  the  judge  thereof,  that  both  of  these 

543 


4192-4204  POLITICAL  CODE. 

officers  are  disqualified,  or  by  reason  of  any  bias,  prejudice,  or  other  cause, 
would  not  act  promptly  or  impartially. 

"When  process  is  delivered  to  an  elisor,  he  must  execute  and  return  it  in  the 
same  manner  as  the  sheriff  is  required  to  execute  similar  process. 

An  Act  prescribing  the  fees  of  coroners  and  elisors  and  tLeir  mode  of  payment. 
Approved  March  30, 1874;  1873-4,  794. 

Fees  of  coroner  or  elisor. 

Section  1.  Whenever  process  is  executed,  or  any  act  performed  by  a  coroner 
or  elisor  in  the  cases  provided  by  law  in  that  behalf,  such  coroner  or  elisor  shall 
be  entitled  to  receive  the  same  fees  as  the  sheriff  would  be  entitled  to  receive 
for  the  same  service,  to  be  paid  by  the  plaintiff  in  case  of  the  summoning  of 
jurors  to  complete  the  panel,  and  by  the  person  or  party  requiring  the  service 
in  all  other  cases  in  private  actions.  If  rendered  at  the  instance  of  the  people, 
it  shall  be  audited  and  paid  as  a  county  charge. 

Sec  2.  This  act  shall  take  effect  immediately  from  and  after  its  passage. 

An  Act  to  authorize  the  boards  of  supervisors  to  furnish  the  sheriff  and  deputy  sheriffs  of 
their  several  counties  with  a  suitable  badge?  of  office. 

Approved  April  1,  187C;  1875-G,  803. 

Sheri^'s  badges. 

Section  1.  The  boards  of  supervisors  of  the  several  counties  of  this  state 
must  furnish  to  the  sheriff,  under  sheriffs,  and  dejDuty  sheriffs  of  their  respec- 
tive counties  a  suitable  badge  of  office,  upon  which  shall  be  inscribed  the  words 
"sheriff"  and  deputy  sheriff. 

Sec  2.     This  act  shall  take  effect  from  and  after  its  passage. 

4193.  Other  duties. 

Sec  41'J3.  The  sheriff  must  perform  such  other  duties  as  are  required  of  him 
by  law. 

ARTICLE  V. 

COUNTY    CLEKK. 

4204.  Dulies  of  county  clerk. 

Sec  42u4.  The  county  clerk  must: 

1.  Take  charge  of  and  safely  keep,  or  dispose  of  according  to  law,  all  books, 
papers,  and  records  which  may  be  filed  or  deposited  in  his  office. 

2.  Act  as  clerk  of  the  board  of  supervisors,  and  as  clerk  of  the  district, 
county,  and  probate  courts,  and  attend  each  term  thereof,  and  upon  the  judges 
at  chaudjers  when  required. 

3.  Issue  all  process  and  notices  required  to  be  issued;  enter  all  orders,  judg- 
ments, and  decrees  proper  to  be  entered;  keep  in  each  court  a  docket,  in  which 
must  be  entered  the  title  of  each  cause,  with  the  date  of  its  commencement,  a 
memorandum  of  every  subsequent  proceeding  therein,  with  the  date  thereof, 
and  a  list  of  all  the  fees  charged. 

4.  Keep  for  the  district  and  county  courts,  in  separate  volumes,  an  index  of 
all  suits,  labeled  "General  index— Plaintiffs,"  each  page  of  which  must  be 
divided  into  seven  columns,  under  their  respective  heads,  alphabetically  ar- 
ranged as  follows:  "Number  of  suit,"  "Plaintiffs,"  "Defendants,"  "Date  of 
judgment,"  "  Number  of  judgment,"  "Page  of  entry  of  judgment  in  judgment- 
book,"  "Page  of  minute-book  of  district  court;"  also  an  index  labeled  "  Gen- 
eral index— Defendants,"  each  page  of  wliieli  mu.st  be  divided  into  seven 
columns,  under  their  respertive  heads,  alphabetically  arranged  as  follows: 
"Number  of  suit,"  "Defendants,"  "Plaintiffs,"  "Date  of  judgment,"  "Num- 
ber of  judgment,"  "Page  of  entry  of  judgment  in  judgment-book,"  "Page  in 
order-book  of  disti'ict  court." 

544 


GOVEEN^IENT  OF  COUNTIES.  4205-4217 

4205.   Other  duties. 

Sec.  4205.  He  must  keep  such  other  records  and  jierfonn  sncli  other  duties 
as  are  prescribed  by  hiw. 

Au  Act  to  provide  for  iudexing  the  naines  of  persons  who  have  declared  their  intention  to 

become  or  who  have  become  citizens  of  the  United  States,  in  the  several  courts  of  record  iu 

this  state. 

Approved  February  8,  1872;  1871-2,  80. 

Duty  of  clerks  of  courts  of  record. 

Section  1,  It  shall  be  the  duty  of  the  clerks  of  the  several  courts  of  record  in 
this  state  to  provide  two  books,  iu  the  oue  of  which  shall  be  entered  in  alpha- 
betical order,  the  names  of  all  persons  who,  from  the  organization  of  said  courts, 
have  declared  or  who  may  hereafter  declare  their  intention  to  become  citizens 
of  the  United  States,  together  with  the  date  of  such  declaration;  and  iu  the 
other  of  which  shall  be  entered  in  alphabetical  order,  the  names  of  all  persons 
who  have  been  or  who  may  be  hereafter  admitted  citizens  of  the  United  States 
by  any  courts  of  which  they  are  clerks,  and  they  shall  also  enter  in  separate 
columns  opposite  each  name,  the  country  of  which  he  was  before  a  citizen  or 
subject,  the  date  of  his  admission,  and  the  page  of  the  book  of  the  record  of 
the  coiu't  containing  the  order  admitting  him  as  such  citizen. 
Clerks  fees. 

Sec.  2.  The  said  clerks  shall  be  entitled  to  receive  for  their  own  use  and 
benefit,  a  fee  of  twenty  cents  for  each  name  indexed  as  provided  in  section  one 
of  this  act,  and  said  fees,  together  with  the  costs  of  said  books,  shall  become  a 
county  charge,  and  shall  be  allowed  by  the  board  of  supervisors  of  the  several 
counties,  and  paid  out  of  the  same  fund  that  other  services  rendered  by  said 
clerks  to  their  respective  counties  are  paid;  provided,  that  no  compensation 
shall  be  allowed  any  clerk  under  the  provisions  of  this  act  for  indexing  axxy 
names  contained  in  any  such  records  which  have  been  heretofore  indexed,  but 
such  records  and  indices  shall  stand  iu  lieu  of  those  provided  for  in  this  act; 
and  provided  further,  that  no  clerk  shall  be  entitled  to  charge  or  receive  any 
fee  for  indexing  the  name  of  any  person  who  may  declare  his  intention  to  be- 
come or  who  may  become  a  citizen  of  the  United  States  after  the  passage  of 
this  act. 

Sec.  3.  This  act  shall  take  effect  immediately. 

ARTICLE  VI. 

AUDITOR. 

4215.  Auditor  to  draw  imrrants  and  settle  accounts. 

Sec.  4215.  The  auditor  must  draw  warrants  on  the  county  treasurer  in  favor 
of  all  persons  entitled  thereto  in  payment  of  all  claims  and  demands  chargeable 
against  the  county  which  have  been  legally  examined,  allowed,  and  ordered 
paid  by  the  board  of  supervisors;  also,  for  all  debts  and  demands  against  the 
county  when  the  amounts  are  fixed  by  law,  and  which  are  not  directed  to  be 
audited  by  some  other  person  or  tribunal. 

4216.  Warrants  must  specfy  ivhat. 

Sec.  4216.  All  warrants  must  distinctly  specify  the  liability  for  which  they 
are  drawn,  and  when  it  accrued. 

4217.  Settlements  idth  debtors  to  the  county. 

Sec  4217.  The  auditor  must  examine  and  settle  the  accounts  of  all  persons 
indebted  to  the  county,  or  holding  moneys  payable  iuto  the  county  treasury, 
and  must  certify  the  amount  to  the  treasurer,  and  upon  the  presentation  and 
filing  of  the  treasurer's  receipt  therefor  give  to  such  person  a  discharge,  and 
charge  the  treasurer  with  the  amount  received  by  him. 
35  545 


4218-4235  POLITICAL  CODE. 

4218.  To  keep  accounts,  file  receipts,  etc. 

Sec.  4218.  The  auditor  must  keep  accounts  current  with  the  treasurer,  and 
when  any  person  deposits  Avith  the  auditor  any  receipt  given  by  the  treasurer 
for  any  money  paid  into  the  treasury,  the  auditor  must  file  such  receipt  and 
charge  the  treasurer  with  the  amount  thereof. 

4219.  Warrants  of  auditor  to  be  numbered. 

Sec.  4219.  All  warrants  issued  by  the  auditor  during  each  year,  commencing 
with  the  first  Monday  in  January,  must  be  numbered  consecutively,  and  the 
number,  date,  and  amount  of  each,  and  the  name  of  the  person  to  whom  pay- 
able, and  the  purpose  for  which  drawn,  must  be  stated  thereon,  and  they 
must,  at  the  time  they  are  issued,  be  registered  by  him. 

4220.  Auditor  to  examine  books  of  treasurer,  when. 

Sec.  4220.  The  auditor  must,  between  the  first  and  tenth  of  each  month, 
examine  the  books  of  the  treasurer  and  see  that  the  same  have  been  correctly 
kept. 

4221.  Auditor  and  county  judge  to  count  money  in  treasury  and  make  statement. 
Sec.  4221.  The  county  judge  and  auditor  must,  at  least  once  in  each  mouth, 

count  the  money  in  the    county  treasury,  and  make  and  verify  in  duplicate 
statement  showing: 

1.  The  amount  of  money  that  ought  to  be  in  the  treasury; 

2.  The  amount  and  kind  of  money  actually  therein. 

4222.  Statements  to  bejiled  and  posted. 

Sec.  4222.  They  must  file  one  of  the  statements  in  the  office  of  the  county 
clerk,  and  the  auditor  must  post  and  maintain  the  other  in  his  office  for  at  least 
a  month  thereafter. 

4223.  Quarterly  statements  concerning  collection  of  revenue  to  be  made,  when. 
Sec.  4223.  The  auditor  and  treasurer  of  each  county  must,  on  the  first  Mon- 
day in  Februaiy,  May,  August  and  November,  make  a  joint  statement  to  the 
board  of  super"s-isors,  showing  the  whole  amount  of  collections  (stating  particu- 
larly the  source  of  each  portion  of  the  revenue)  from  all  sources  paid  into  the 
county  treasury,  the  funds  among  Avhich  the  same  was  distributed,  and  the 
amount  to  each;  the  total  amount  of  warrants  drawn  and  paid,  and  on  what 
fund;  the  total  amount  of  warrants  drawn  and  unpaid,  and  accounts  or  claims 
audited,  or  allowed  and  unpaid,  and  the  fund  out  of  which  they  are  to  be  paid, 
and  generully  make  a  full  and  specific  showing  of  the  financial  condition  of  the 
county. 

4224.  oilier  duties. 

Sec.  4'i24.  The  auditor  must  discharge  such  other  duties  as  are  required  by 
law. 

ARTICLE  VII. 

RECORDER. 

4234.  Itecorder  to  proc^ire  record  books. 

Sec.  4234.  The  recorder  must  procure  such  books  for  records  as  the  business 
of  his  office  requires,  but  orders  for  the  same  must  first  be  obtained  from  the 
boanl  of  Kupervisors.  He  has  the  custody  of  and  must  keep  all  books,  records, 
majtH,  and  papers  deposited  in  his  office. 

4235.  Wliat  to  be  recorded. 

Sec.  4235.  He  must,  upon  tlie  payment  of  his  fees  for  the  same,  record  sei> 
lately,  in  large  and  well-bound  sei)arate  books,  in  a  fair  hand: 
1.   Deeds,  grants,  transfers,  and  mortgages  of  real  estate,  releases  of  mort- 
gages, powers  of  attorney  to  convey  real  estate,  and  leases  which  have  been 
acknowledged  or  proved; 

54G 


GOVERNMENT  OF  COUNTIES.  423^  4230 

2.  Mortgages  of  personal  property; 

3.  Certificates  of  marriage  and  niamage  contracts; 

4.  Wills  admitted  to  probate; 

5.  Official  bonds; 

6.  Notices  of  mechanics'  liens; 

7.  Transcripts  of  judgments  which  b}'  law  are  made  liens  upon  real  estate; 

8.  Notices  of  attachments  upon  real  estate; 

9.  Notices  of  the  pendency  of  an  action  afitecting  real  estate,  the  title  thereto, 
or  possession  thereof; 

10.  Instruments  describing  or  relating  to  the  separate  property  of  married 
women; 

11.  Notices  of  pre-emption  claims; 

12.  Births  and  deaths;  and, 

13.  Such  other  writings  as  are  required  or  permitted  by  law  to  be  recorded. 

4236.  Indexes  to  he  kepi  by  recorder. 
Sec.  4236.  Every  recorder  must  keep*: 

1.  An  index  of  deeds,  grants,  and  transfers,  labeled  "Grantors,"  each  page 
divided  into  four  columns,  headed  resi^ectively:  "Names  of  grantors," 
"Names  of  grantees,"  "Date  of  deeds,  grants,  or  transfers,"  and  "Where 
recorded." 

2.  An  index  of  deeds,  labeled  "Grantees,"  each  page  divided  into  four  col- 
umns, headed  respectively:  "Names  of  grantees,"  "Names  of  grantors," 
"Date  of  deeds,  grants,  or  transfers,"  and  "Where  recorded." 

3.  Two  indexes  of  mortgages,  labeled  respectively:  "Mortgages  of  real 
property,"  "Mortgages  of  personal  property,"  with  the  pages  thereof  divided 
into  five  columns,  headed  respectively:  "Names  of  mortgagors,"  "Names  of 
mortgagees,"  "Date  of  mortgages,"  "Where  recorded,"  "When  discharged." 

4.  Two  indexes  of  mortgagees,  labeled  respectively:  "Mortgagees  of  real 
property,"  "Mortgagees  of  personal  property,"  with  the  pages  thereof  divided 
into  five  columns,  headed  respectively:  "Names  of  mortgagees,"  "Names  of 
mortgagors,"  "Date  of  mortgages,"  "Where  recorded,"  "When  discharged." 

5.  Two  indexes  of  releases  of  mortgages,  labelled  res2:)ectivelv :  "  Releases  of 
mortgages  of  real  property — mortgagors,"  "Releases  of  mortgages  of  personal 
property — mortgagors,"  with  the  pages  thereof  divided  into  six  columns,  headed 
resj)ectively :  "Parties  releasing,"  ',' To  whom  releases  are  given,"  "Date  of 
releases,"  "Where  releases  are  recorded,"  "Date  of  mortgages  released,"  "Where 
mortgages  released  are  recorded." 

6.  Two  indexes  of  releases  of  mortgages,  labeled  respectively :  "Releases  of 
mortgages  of  real  property — mortgagees,"  "Releases  of  mortgages  of  personal 
property — mortgagees,"  with  the  pages  thereof  divided  into  six  columns,  headed 
respectively:  "Parties  whose  mortgages  are  released,"  "Parties  relea.sing," 
"Date  of  releases,"  "Where  recorded,"  "  Date  of  mortgages  released,"  "Where 
mortgages  released  are  recorded." 

7.  An  index  of  powers  of  attorney,  labeled  "  Powers  of  attorney,"  each  page 
divided  into  five  columns,  headed  respectively:  "Names  of  parties  executing 
the  powers,"  "  To  whom  powers  are  executed,"  "  Date  of  powers,"  "  Date  of 
recording,"  "  W^here  powers  are  recorded." 

8.  An  index  of  leases,  labeled  "  Leases,"  each  page  divided  into  four  columns, 
headed  respectively:  "  Names  of  lessors,"  "  Names  of  lessees,"  "Date  of  leases," 
"  When  and  where  recorded." 

9.  An  index  of  leases,  labeled  "Lessees,"  each  page  divided  into  four  col- 
umns, headed  respectively:  "  Names  of  lessees,"  "  Names  of  lessors,"  "  Date  of 
leases,"  "  When  and  where  recorded." 

547 


423G-4237  POLITICAL  CODE. 

10.  An  index  of  marriage  certificates,  labeled  "Marriage  certificates— men," 
each  page  divided  into  six  columns,  headed  respectively:  "  Men  mamed,"  "To 
whom  married,"  " '^A'hen  mariied,"  "  By  whom  married,"  "Where  married," 
••  Where  certificates  are  recorded." 

11.  An  index  of  marriage  certificates,  labeled  "Marriage  certificates- 
women,"  each  page  divided  into  six  columns,  headed  respectively:  "Women 
married"  (and  under  this  head  placing  the  family  names  of  the  women),  "  To 
whom  married."  "When  married,"  "  By  whom  married,"  "Where  married," 
"  Where  certificates  are  recorded." 

12.  An  index  of  assignments  of  mortgages  and  leases,  labeled  "Assignments 
of  mortgages  and  leases — assignors,"  each  page  divided  into  five  colimins, 
headed  resj^ectively:  "Assignors,"  "Assignees,"  "Instruments  assigned," 
"  Date  of  assignments,"  "  When  and  where  recorded." 

13.  An  index  of  assignments  of  mortgages  and  leases,  labeled  "Assignments 
of  mortgages  and  leases — assignees,"  each  page  divided  into  five  columns, 
headed  respectively:  "Assignees,"  ''•Assignors,"  "Instruments  assigned," 
"  Date  of  assignments,"  "  When  and  where  recorded." 

14.  An  index  of  wills,  labeled  "Wills,"  each  page  divided  into  four  columns, 
headed  respectively:  "Names  of  testators,"  "Date  of  wills,"  "Date  of  pro- 
bate," "When  and  where  recorded." 

15.  An  index  of  official  bonds,  labeled  "Official  bonds,"  each  page  divided 
into  five  columns,  headed  resjiectivelj^:  "  Names  of  officers,"  "Names  of  offices," 
"Date  of  bonds,"  "Amount  of  bonds,"  "  AVhen  and  where  recorded." 

16.  An  index  of  notices  of  mechanics'  liens,  labeled  "Mechanics'  liens," 
each  page  divided  into  three  columns,  headed  respectively:  "Parties  claiming 
liens,"  "Against  whom  claimed,"  "Notices  when  and  where  recorded." 

17.  An  index  to  transcrij:)ts  of  judgments,  labeled  "Transcripts  of  judg- 
ments," each  page  divided  into  seven  columns,  headed  respectively:  "Judg- 
ment debtors,"  "Judgment  creditors,"  "Amount  of  judgments,"  "Where  re- 
covered," "AVhen  recovered,"  "When  transcript  filed,"  "When  judgment 
satisfied." 

Iti.  An  index  of  attachments,  labeled  "Attachments,"  each  page  divided  into 
six  columns,  headed  respectively:  "Parties  against  whom  attachments  are 
issued,"  "Parties  issuing  attachments,"  "Notices  of  attachments,"  "When  re- 
corded," "Where  recorded,"  "When  attachments  discharged." 

19.  An  index  of  notices  of  the  pendency  of  actions,  labeled  "Notices  of 
actions,"  each  page  divided  into  three  columns,  headed  respectively:  "Parties 
to  the  actions,"  "Notices  when  recorded,"  "Where  recorded." 

20.  An  index  of  the  sejmrate  property  of  married  women,  labeled  "Separate 
property  of  married  women,"  each  page  divided  into  five  columns,  headed 
respectively:  "Names  of  married  women,"  "Names  of  their  husbands,"  "Nature 
of  instruments  recorded,"  "When  recorded,"  "  Where  recorded." 

21.  An  index  of  pre-emption  claims,  labeled  "Pre-emption  claims,"  each 
j.age  divided  into  five  columns,  headed  respectively:  "Claimants,"  "Notices," 
"  WJjen  received,"  "  Date  of  notices,"  "  When  and  wLere  recorded." 

22.  An  index  to  the  register  of  births  and  deaths. 

4237.   Ilecords  of  cerlifwates  of  sale. 

Sko.  4237.  The  recorder  must  keep  in  his  office  a  book  to  be  called  "Certif- 
icates of  sale,"  and  record  therein  all  certificates  of  sale  of  real  estate  sold 
under  execution  or  under  order  made  in  any  judicial  proceecling.  He  must 
also  prepare  an  index  tliereto,  in  which  in  separate  columns  he  must  enter  the 
names  of  the  i)]aintiff  in  the  execution,  the  defendant  in  the  execution,  the  pur- 
chaser at  the  sale,  and  the  date  of  the  sale. 

n48 


GOVERNMENT  OF  COUNTIES.  4238-4244 

4238.  To  record  decrees  of  parti  (ion. 

Sec.  4238.  The  recorder  must  file  uiid  record  with  the  record  of  deeds,  f,a-ants, 
and  transfers,  certified  copies  of  final  judgments  or  decrees  partitioning  or 
affecting  the  title  or  j)ossession  of  real  property,  any  part  of  -svhich  is  situate  in 
the  county  of  which  he  is  recorder. 

4239.  Filing  of  coprj  to  imparl  ■notice. 

Sec.  4239.  Every  such  certified  cojjy  of  partition,  from  the  time  of  the  filing  the 
same  with  the  recorder  for  record,  imparts  notice  to  all  persons  of  the  contents 
thereof;  and  subsequent  purchasers,  mortgagees,  and  lienliolders,  purchase  and 
take  with  like  notice  and  effect  as  if  such  copy  of  decree  was  a  duly  recoi'ded 
deed,  grant,  or  transfer. 

4240.  May  keep  two  or  more  indexes  in  name  volume. 

Sec.  4240.  The  recorder  may  keep  in  the  same  volume  any  two  or  more  of 
the  indexes  mentioned  in  section  4236,  but  the  several  indexes  must  be  kept 
distinct  from  each  other,  and  the  volume  distinctly  marked  on  the  outside  in 
such  way  as  to  show  all  the  indexes  kept  therein.  The  names  of  the  parties  in 
the  first  column  in  the  several  indexes  must  be  arranged  in  alphal)etical  order, 
and  when  a  conveyance  is  executed  by  a  sheriff,  the  name  of  the  sheriff  and  the 
party  charged  in  the  execution  must  both  be  inserted  in  the  index,  and  when 
an  instniment  is  recorded  to  which  an  executor,  administrator  or  trustee  is  a 
j)arty,  the  name  of  such  executor,  administrator,  or  trustee,  together  with  the 
name  of  the  testator  or  intestate,  or  party  for  whom  the  trust  is  held,  must  be 
inserted  in  the  index. 

4241.  Recorder's  duty  on  receipt  of  instrument  to  he  recorded. 

Sec.  4241.  When  any  instrument,  paper  or  notice,  authorized  by  law  to  be 
recorded,  is  deposited  in  the  recorder's  office  for  record,  the  recorder  must 
indorse  upon  the  same  the  time  when  it  was  received,  noting  the  year,  month, 
day,  hour,  and  minute  of  its  reception,  and  must  record  the  same  without 
delay,  together  with  the  acknowledgments,  proofs,  and  certificates,  written 
upon  or  annexed  to  the  same,  with  the  plats,  surveys,  schedule,  and  other 
papers  thereto  annexed,  in  the  order  and  as  of  the  time  when  the  same  was 
received  for  record,  and  must  note  at  the  foot  of  the  record  the  exact  time  of 
its  reception,  and  the  name  of  the  person  at  whose  request  it  was  recorded. 

4242.  Recorded  instruments  to  he  indorsed. 

Sec.  4242.  He  must  also  indorse  upon  each  instrument,  pai)er  or  notice,  the 
time  when  and  the  book  and  pages  in  which  it  is  recorded,  and  must  thereafter 
deliver  it  upon  request  to  the  party  leaving  the  same  for  record,  or  to  his 
order. 

4243.  Recorder  to  make  searches. 

Sec.  4243.  The  recorder  must,  upon  the  application  of  any  person,  and  upon 
the  payment  or  tender  of  the  fees  therefor,  make  searches  for  conveyances, 
mortgages,  and  all  other  instruments,  papers,  or  notices  recorded  or  filed  in  his 
office,  and  furnish  a  certificate  thereof,  stating  the  names  of  the  parties  to  such 
instruments,  papers,  and  notices,  the  dates  thereof,  the  year,  month,  day,  hour, 
and  minute  they  were  recorded  or  filed,  the  extent  to  which  they  purjwrt  to 
affect  the  property  to  which  they  relate,  and  the  book  and  pages  where  they  are 
recorded. 

4244.  Liable  for  neglect  of  certain  duties. 

Sec.  4244.  If  any  recorder  to  whom  an  instrument,  proved  or  acknowledged 
according  to  law,  or  any  paper  or  notice  which  may  by  law  be  recorded,  is 
delivered  for  record: 

1.  Neglects  or  refuses  to  record  such  instrument,  paper,  or  notice,  within  a 
reasonable  time  after  i-eceiviug  the  same;  or, 

549 


4244-4256  POLITICAL  CODE. 

2.  Records  anv  insti-ument,  papers,  or  notices  untruly,  or  in  any  other  man- 
ner tlinu  as  hereinbefore  directed;  or, 

8.  Neglects  or  refuses  to  keep  in  his  office  such  indexes  as  are  required  by 
tliis  article,  or  to  make  the  proper  entries  therein;  or, 

4.  Neglects  or  refuses  to  make  the  searches  and  to  give  the  certificate  required 
by  this  article;  or  if  such  searches  or  certificate  are  incomplete  and  defective  in 
any  important  particular  affecting  the  property  in  respect  to  which  the  search 
is  requested;  or, 

0.  Altei-s,  changes,  or  obliterates  any  records  deposited  in  his  office,  or  inserts 
any  new  matter  therein; 

— He  is  liable  to  the  party  aggrieved  for  three  times  the  amount  of  the  dam- 
ages which  may  be  occasioned  thereby. 

4245.  Fees  la  be  prepaid. 

Slc.  4245.  He  is  not  bound  to  record  any  instrument,  or  file  any  pajDcr  or 
notice,  or  furnish  any  copies,  or  to  render  any  service  connected  with  his  office, 
until  his  fees  for  the  same,  as  jn-escribed  by  law,  are,  if  demanded,  x^aid  or 
tendered. 

4246.  liecords  to  he  open  for-  inspection. 

Si-c.  4240.  All  books  of  record,  maps,  charts,  surveys,  and  other  papers  on 
tile  in  the  recorder's  office,  must,  during  office  hours,  be  open  for  the  inspection 
of  any  person  who  may  desire  to  inspect  them,  and  may  be  insjDected  without 
rharge;  and  the  recorder  must  arrange  the  books  of  record  and  indexes  in  his 
office  in  such  suitable  2)laces  as  to  facilitate  their  inspection. 

ARTICLE  VIII. 

DISTRICT    ATTORNEY. 

4256.    Dnlies  of  district  attorney. 

Sec.  4250.   The  district  attorney  is  the  public  prosecutor,  and  must : 

1.  Attend  the  district  and  county  courts,  and  conduct,  on  behalf  of  the  people, 
all  i)rosecutious  for  public  offenses; 

2.  Institute  proceedings  before  magistrates  for  the  arrest  of  persons  charged 
with  or  reasonably  suspected  of  public  offenses,  when  he  has  information  that 
rM\  such  offenses  have  been  committed;  and  for  that  purx^ose,  when  not  engaged 
.n  criminal  proceedings  in  the  district  or  county  courts,  must  attend  upon  the 
magistrates  in  cases  of  arrest,  when  required  by  them,  and   attend   before  and 

rive  advice  to  the  grand  jury,  whenever  cases  are  joresented  to  them  for  their 
•  •onsideration; 

;i  Draw,  all  indictments,  defend  all  suits  brought  against  the  state  or  his 
county,  prosecute  all  recognizances  forfeited  in  the  courts  of  record,  and  all 
actions  for  the  recovery  of  debts,  fines,  penalties,  and  forfeitures  accruing  to 
tlic  state  or  his  county; 

4.  Deliver  receipts  for  money  or  property  received  in  his  official  capacity,  and 
file  duplicates  thereof  with  the  county  treasurer; 

5.  On  the  first  Mondays  of  January,  April,  July,  and  October  in  each  year, 
file  with  the  auditor  an  account,  verified  by  his  oath,  of  all  moneys  received  by 
liim  in  his  ofliciiil  ca}(acity  during  the  preceding  three  months,  and  at  the  same 
lime  jiay  it  over  to  the  county  treasurer; 

(').  Give  when  required,  and  without  fee,  his  opinion  (in  writing)  to  county, 
district,  and  township  officers  on  matters  relating  to  the  duties  of  their  respective 
oflif-es;  and, 

7.  Keej)  a  register  of  official  business,  in  which  must  be  entered  a  note  of  every 
action,  whether  criminal  or  civil,  prosecuted  officially,  and  of  the  proceedings 
therein; 

8.  Perform  such  otlier  duties  as  are  prescribed  by  law. 

550 


GOVERNMENT  OF  COUNTEES.  425G-4275 

4257.  Legal  advispr  of  supervisors. 

Sec.  4257,  The  district  attorney  is  the  legal  adviser  of  the  hoard  of  fiupen-isors. 
He  must  attend  their  meetings  when  required,  and  must  attend  and  oppose  all 
claims  and  accounts  against  the  county  when  he  deems  them  unjust  or  illegal, 

4258.  ]\[i(st  not  act  as  ait  o  nicy  for  claims  against  his  oivn  coiinlij. 

Sec.  4258.  The  district  attorney,  except  for  his  own  services,  must  not  present 
any  claim,  account,  or  demand  for  allowance  against  the  county,  nor  in  any  way 
advocate  the  relief  asked  on  the  claim  or  demand  made  by  another, 

ARTICLE  IX, 

SUKVEYOR. 

4268.  County  surveyor  to  make  surveys  on  application  made  to  him. 

Sec.  42C)8.  The  surveyor  must  make  any  survey  that  may  be  required  by  the 
order  of  court,  or  upon  application  of  any  j^erson,  keep  a  correct  and  fair 
record  of  all  surveys  made  by  him,  number  them  in  the  order  made  progres- 
sively, and  preserve  a  copy  of  the  field  notes  and  calculations  of  each  survey, 
indorse  thereon  its  proj^er  number,  a  copy  of  which,  and  a  fair  and  accurate 
plat,  together  with  the  certificate  of  survey,  must  be  furnished  by  him  to  any 
person  upon  payment  of  the  fees  allowed  by  law. 

4269.  Surveys  of  lands  in  two  counties. 

Sec.  4269.  Any  person  owning  or  claiming  lands  which  are  divided  by  county 
lines,  and  wishing  to  have  the  same  suiweyed,  may  apply  to  the  surveyor  of  any 
county  in  which  any  part  of  such  land  is  situated,  and  on  such  aj^plication 
being  made  the  surveyor  must  make  the  survey,  which  is  as  valid  as  though  the 
lands  were  situated  entirely  w^ithin  the  county. 

4270.  Uisputes  before  court  concerning  title  to  lands  in  tico  counties. 

Sec.  4270.  "When  land,  the  title  to  which  is  in  dispute  before  any  court,  is 
divided  by  a  county  line,  the  court  making  an  order  of  survey  may  dii'ect  the 
order  to  the  surveyor  of  any  county  in  which  any  part  of  the  land  is  situated. 

4271.  Courses  to  be  rmi  by  true  meridian. 

Sec  4271.  In  all  surveys  the  courses  must  be  expressed  according  to  the  tnie 
meridian,  and  the  variation  of  the  magnetic  meridian  from  the  true  meridian 
must  be  expressed  on  the  plat,  with  the  date  of  the  suiwey, 

4272.  Surveyor  to  employ  assistants,  ichen. 

Sec  4272.  If  a  party  for  whom  a  survey  is  made  does  not  furnish  the  chain- 
men  and  markers,  the  surveyor  may  employ  the  necessary  chainmen  and  markers, 
and  receive  the  reasonable  hire  of  all  assistance  necessarily  emiDloyed. 

4273.  Surveyor  to  transmit  plat  and  field  notes  to  surveyor-general  when  required. 
Sec  4273.    Each  county  surveyor,   immediately  after  making   any   survey, 

except  surveys  of  city  or  town  lots,  must  make  out  a  copy  of  the  field  notes  and 
plat,  and  transmit  the  same  to  the  surveyor-general,  indicating  plainly  u]>on  the 
plat  at  what  point  of  any  line  any  river  or  stream  or  county  line  is  touched  or 
crossed.  He  must  communicate  to  the  surveyor-general  such  infoimation  con- 
cerning surveys  made  by  him,  and  other  matters  connected  with  the  duties  of 
his  office,  as  may  be  required. 

4274.  To  assist  surveyor-general,  when. 

Sec.  4274.  Each  county  surveyor  must,  when  required,  aid  and  assist  the 
surve3'or-general  in  making  surveys  within  the  county. 

4275.  When  county  surveyor  is  interested  in  lands,  court  to  appoint  some  other 

person. 
Sec.  4275.  When  the  county  sui-^-eyor  is  interested  in  any  land  the  title  to 

551 


4275^290  POLITICAL  CODE. 

wbich  is  in  dispute  and  a  survey  thereof  is  necessary,  the  court  must  direct  the 
survey  to  be  made  by  some  disinterested  j^erson,  and  the  person  so  appointed 
is  for  that  purpose  authorized  to  administer  and  certify  oaths.  He  must  return 
such  survey,  verified  by  his  afiidavit  annexed  thereto,  and  receive  for  his  services 
the  same  fees  as  the  county  surveyor  woukl  be  entitled  to  for  simihir  services. 

ARTICLE  X. 

CORONER. 

4285.  Corourr  to  hold  inqued. 

Si;c.  4285.  The  coroner  must  hold  inquests  as  prescribed  in  Chapter  II,  Title 
XII.  Part  II  of  the  Penal  Code.     [See  post,  14,510.] 

4286.  Coroner  to  bury  body,  tvhen. 

Sec.  428G.  TMien  an  inquest  is  held  by  the  coroner,  and  no  other  person  takes 
charj^'-e  of  the  body  of  the  deceased,  he  must  cause  it  to  be  decently  interred; 
and  if  there  is  not  sufficient  property  belonging  to  the  estate  of  the  deceased  to 
l^ay  the  necessary  expenses  of  the  burial,  the  expenses  are  a  legal  charge  against 
the  county. 

4287.  To  deliver  to  county  treasurer  property,  etc.,  found  on  body. 

Sec.  4287.  The  coroner  must,  -uithin  thirty  days  after  an  inquest  upon  a  dead 
body,  deliver  to  the  county  treasurer  or  the  legal  representatives  of  the  deceased 
any  money  or  other  2)roi)ei'ty  found  upon  the  body. 

4288.  Auditing  accounts  of  coroner. 

Sec.  4288.  Before  auditing  or  allowing  the  accounts  of  the  coroner,  the  super- 
visors must  require  him  to  file  with  the  clerk  of*  the  board  a  statement  in  writ- 
ing, verified  by  his  affidavit,  showing: 

1.  The  amount  of  money  or  other  property  belonging  to  the  estate  of  the 
deceased  person  which  has  come  into  his  possession  since  his  last  statement; 

2.  The  disposition  made  of  such  property. 

4289.  Justice  of  jwace  to  act  as  coroner  in  certain  cases. 

Sec.  4289.  If  the  office  of  coroner  is  vacant,  or  he  is  absent  or  unable  to 
atteud,  the  duties  of  his  office  may  be  discharged  by  an}'  justice  of  the  peace 
of  the  county,  with  the  like  authority  and  subject  to  the  same  obligations  and 
I'«ii.ilties  as  the  coroner. 

4290.  Coroner  to  discharcje  duties  of  sheri//',  when. 

Sec.  4290.  In  the  cases  s])ecified  in  Article  IV  of  this  chapter,  the  coroner 
must  discharge  the  duties  of  sheriff. 

An  Ac-t  conceruing  the  attendance  of  pbj'siciatis  and  surgeons  in  certain  cases,  and  to  pro- 
vide payiijeut  for  making  cLemical  and  post-mortem  examinations. 

Apiiroved  February  8,  1872;  1H71-2,  81. 

Coroner  may  sumiiion  physician,  suryeon  or  chemist. 

Section  1.  The  coroner  or  other  officer  holding  an  inquest  upon  the  body  of 
a  deceased  person  may  summon  a  physician  or  surgeon  to  inspect  the  body,  or 
a  chemist  to  make  an  analysis  of  the  contents  of  the  stomach,  or  the  tissues  of 
tiie  body  of  the  deceased,  and  to  give  a  professional  opinion  as  to  the  cause  of 
the  death. 

Compensation. 

Sec  2.  Any  physicLan,  surgeon,  or  chemist  professionally  attending  as  a  wit- 
ness on  an  inquest,  or  upon  a  trial  of  any  person  charged  with  murder  or  man- 
slaugliter,  or  in  cases  de  lunatico  inquirendo,  as  above  provided,  shall  be  allowed 
a  reasonable  compensation  for  such  attendance  or  examination  by  the  board  of 
supervisors,  upon  the  written  certificate  of  the  court  or   officer  requiring  such 

552 


GOVEENMENT  OF  COUNTIES.  4290 

services,  as  to  the  extent  and  supposed  value  of  the  same;  provided,  that  such 
certificate  shall  not  be  conclusive  as  to  the  amount  of  compensatiuu. 

An  Act  in  relation  to  coroners  in  the  city  and  county  of  Sun  Francisco. 
Approved  March  10,  1872;  1H71-2,  403. 

Official  oath  and  bond. 

Section  1.  Every  person  elected  or  apjiointed  to  the  office  of  coroner,  hefore 
he  shall  enter  upon  the  duties  of  such  otHce,  shall  take  the  constitutiunul  oath 
of  office,  and  give  an  official  bond  in  the  sum  of  five  hundred  dolhirs. 
Coroner's  duties. 

Sec.  2.  The  duties  of  coroner  shall  be,  first,  to  hold  inquests  upon  the  bodies 
of  persons  slain,  or  who  shall  have  committed  suicide,  or  been  found  dead 
under  such  circumstances  as  to  lead  to  a  suspicion  of  crime  committed,  within 
the  county  in  which  such  coroner  resides;  second,  to  issue  process  for  the  arrest 
of  one  charged  upon  inquest  with  murder  or  manslaughttu';  to  hold  inciuest  on 
the  body  of  every  prisoner  Avho  dies  in  jail;  and  it  shall  be  the  duty  of  the  jailer, 
whenever  a  prisoner  dies  in  his  custody,  to  send  for  the  coroner  who  has  juris- 
diction, who  shall  hold  inquest  ujoon  the  body  of  such  prisoner.  The  duties  of 
coroners  upon  inquests  shall  not  be  delegated. 
Notice  of  death. 

Sec.  3.  Whenever  any  coroner  shall  receive  notice  that  any  person  has  been 
slain,  or  has  committed  suicide,  or  has  died  suddenly,  or  has  been  found  dead 
under  circumstances  such  as  to  require  an  inquisition,  it  shall  be  his  duty  to  go 
to  the  i^lace  where  such  person  shall  be,  or  if  the  body  shall  have  been  inteiTed, 
shall  cause  it  to  be  disinterred,  and  shall  forthwith  summon  not  less  than  nine 
or  more  than  fifteen  jiersons  to  serve  as  jurors,  to  appear  before  him  forthwith 
at  such  place  as  he  shall  appoint,  and  make  inquisition  concerning  such  death. 
He  shall  summon  none  but  persons  duly  qualified  by  law  to  serve  as  jurors,  and 
no  such  person  shall  be  exempt  except  at  the  discretion  of  the  coroner.  No 
person  shall  be  summoned  who  is  related  to  the  deceased,  or  to  any  person  who 
may  be  suspected  or  charged  with  the  killiug;  nor  shall  any  one  be  summoned 
who  is  known  to  be  prejudiced  for  or  against  him,  but  the  jurors  who  are 
selected  and  appear  shall  not  be  challenged  by  any  party.  [Amendment,  ap- 
proved March  23,  1876;  1875-6,  397;  took  effect  from  passage. 
Forfeiture. 

Sec.  4.  Every  person  summoned  as  a  juror  who  shall  fail  to  appear  without 
having  a  reasonable  excuse,  shall  forfeit  a  sum  not  exceeding  the  sum  of  two 
hundred  dollars,  to  be  recovered  by  the  coroner,  in  the  name  of  the  people  of 
the  state,  before  any  justice  of  the  peace  in  the  proper  township,  and  when  col- 
lected to  be  paid  into  the  county  treasury  for  t^e  use  of  the  county. 
Swearing  jury. 

Sec.  5.  When  six  or  more  of  the  jurors  attend  they  shall  be  sworn  by  the 
coroner  and  charged  by  him  to  inquire  hoAV  and  in  what  manner  and  when  and 
where  such  person  came  to  his  death,  and  who  such  person  was,  and  into  all 
the  circumstances  attending  such  death,  and  to  make  a  true  inquisition  accord- 
ing to  the  evidence  ofi'ered  to  them  or  arising  from  the  inspection  of  the  body. 
Inquest. 

Sec.  6.  There  shall  be  but  one  inquest  upon  a  body,  unless  that  taken  be  set 
aside  by  the  court;  and  there  shall  be  but  one  inquest  held  upon  several  bodies 
of  persons  who  were  killed  by  the  same  cause  and  who  died  at  the  same  time. 
Whenever  it  shall  appear  that  an  error  in  the  identity  of  the  body  has  been 
made  by  the  jury,  it  shall  be  discretionary  with  the  coroner  to  call  another  in- 
quest upon  the  body  without  reference  to  the  court,  and  a  memorandum  of  the 
error  shall  be  entered  upon  the  erroneous  inquisition. 

553 


4290  POLITICAL  CODE. 

To  view  the  body. 

Sec.  7.  After  the  juiy  have  been  sworn  and  charged  by  the  coroner,  they 
shall  go  together  -n-ith  the  coroner  to  view  and  examine  the  body  of  the  dec-eased 
pei-son.  They  shall  not  proceed  upon  the  inquest  until  they  have  so  viewed 
the  body.  After  the  jury  have  viewed  the  body  they  may  retire  to  any  conve- 
nient place  to  hear  the  testimony  of  witnesses  and  deliberate  upon  their  verdict. 
For  this  end  the  coroner  may  adjourn  the  iuquest  from  time  to  time,  as  may  be 
necessary. 
Isaue  suhpania. 

Sec  8.  The  coroner  may  issue  subjDoenas  for  witnesses,  returnable  forthwith 
or  at  such  time  aud  place  as  he  may  appoint  therein,  which  may  be  served  by 
any  competent  person  by  reading  the  same  to  the  witness  or  informing  him  or 
her  of  the  contents  thereof,  aud  such  Avitness  shall  not  be  entitled  to  any  fee 
for  attendance.  Every  person  served  with  such  subpoena  shall  be  liable  to  the 
same  penalties  for  disobedience  thereto,  and  his  attendance  may  be  enforced  in 
like  manner  as  in  case  of  subpoenas  issued  b}'  a  justice  of  the  peace. 

Wifnesse.i. 

Sec  9.  The  coroner  shall  summon  and  examine  as  witnesses  eveiy  person 
who,  in  his  oijiuion  or  that  of  the  jury,  has  any  knowledge  of  the  facts,  and  he 
may  summon  a  surgeon  or  j^hysician  to  inspect  the  body  and  to  give  a  profes- 
sional opinion  as  to  the  cause  of  death;  and  if  it  shall  be  necessary,  the  coroner 
may  cause  a  post-mortem  examination  or  chemical  analysis  to  be  made,  and  the 
expense  of  such  examination  or  analysis  shall  be  a  county  charge,  to  be  fixed  by 
the  board  of  supervisors. 
VerdicL 

Sec  10.  "Witnesses  produced  shall  be  sworn  by  the  coroner,  and  the  whole  of 
the  testimony  shall  be  reduced  to  writing  by  the  coroner,  or  under  his  direction, 
and  signed  by  the  witnesses  in  the  presence  of  the  jury,  and  each  deposition 
shall  liave  a  jurat  attached.  The  jury,  after  hearing  all  the  testimony  offered 
before  them,  shall  retire  as  jurors  in  other  cases  and  deliberate  upon  their  ver- 
dict, suffering  no  one,  not  even  the  coroner,  to  mingle  with  them  in  their  delib- 
erations; but  they  may,  as  in  the  case  of  jurors  in  the  courts  of  law,  take  the 
opinion  of  the  coroner  ujjon  any  question  of  law  that  may  arise  upon  the  inves- 
tigation. 

Dialrici  ailorney. 

Sec  11,  The  coroner  may  call  uj)on  the  district  attorney  to  assist  him  in  the 
examination  of  witnesses,  and  the  jurors  may  put  any  proper  question  to  the 
witness,  but  the  party  susj^ected  or  charged  Avith  the  crime  shall  have  no  right 
to  produce  witnesses  on  the  inquest,  or  to  cross-examine  those  produced  on 
behalf  of  tlie  people  by  himself  or  counsel;  nor  shall  it  be  necessary  that  he 
be  i)resent  during  tlie  examination.  But  it  shall  be  the  duty  of  the  coroner  to 
examine  any  witness  who  he  may  have  reason  to  believe  may  know  anything 
concerning  the  matter  pertinent  to  the  inquiry,  and  to  put  to  any  witness  any 
proper  and  i)ertinent  question  that  such  person  may  desire.  Such  party 
suspected  or  cliarged,  liowever,  may  be  attended  by  counsel  on  the  intjuest  to 
a<lviHe  with  him  as  to  Ijis  rights  in  answering  any  question  that  may  be  put  to 
Lim  wlien  under  examination.  If  the  party  accused  of  the  crime  be  present 
at  the  inquest,  and  is  then  charged  with  the  crime,  or  the  testimony  tends  to 
criminate  liini,  and  lie  is  called  upon  by  the  coroner  to  testify,  it  is  the  duty  of 
the  coronrr  first  to  inform  the  accused  that  he  is  at  liberty  to  refuse  to  answer 
any  question  that  he  mtxy  put  to  him,  otherwise  his  answer  on  such  examina- 
tion cannot  be  read  in  evidence  against  him  when  on  trial  for  the  offense.  But 
if  such  [torson  is  not  under  arrest  or  charged  Avith  the  crime,  his  answer  may 

554 


GOVERNMENT  OF  COUNTIES.  4290 

be  given  in  evidence  against  him  on  his  subsequent  trial  for  tlio  crime  charged, 
though  the  coroner  may  not  have  so  advised  Lim  of  his  rights.  The  jury  must 
hear  all  the  evidence  ofi'cred  before  them,  Avhether  it  be  in  favor  (jf  or  against 
any  party  suspected  of  the  killing. 

Investigation  not  limited. 

Sec.  12.  Upon  the  investigation  the  coroner's  jury  shall  not  be  limited  in 
their  inquiry  like  a  jury  upon  the  trial  of  one  charged  with  tlie  crime;  their 
duties  shall  be  to  determine  if  a  crime  has  or  has  not  been  committed;  and  if  a 
crime  has  been  committed,  who  perpetrated  or  caused  the  same  to  be  perpe- 
trated, and  all  the  circumstances  attending  it;  and  any  proper  testimony 
tending  in  any  degree  to  throw  light  upon  the  subject  may  be  i)roi)erly  given. 
Matters  of  opinion,  except  of  professional  witnesses,  or  hearsay  evidence,  shall 
not  be  i^ermitted. 

Written  verdict. 

Sec.  13.  When  the  jury  shall  have  agreed  upon  a  verdict  they  shall  reduce 
their  inquisition  to  writing,  which  writing  shall  show  before  what  coroner  the 
same  was  taken,  and  that  the  same  was  taken  upon  the  oath  of  good  and  law- 
ful men  of  the  county,  who  were  first  duly  sworn;  and  it  must  also  show  by 
whom  and  W'hen  the  same  was  executed.  They  shall  also  find  and  certify  who 
or  in  what  manner  and  when  and  where  the  person  so  dead  came  to  his 
death,  and  all  the  circumstances  attending  such  death;  and  if  a  crime  has 
been  committed  in  the  case  who  were  gTiilty  thereof,  either  as  principal 
or  accessory,  and  in  what  manner.  The  jury  shall  not  be  required  to  find 
who  were  accessories  after  the  fact — only  those  before  the  fact.  If  the  per- 
son who  is  found  dead  is  unknown,  or  the  person  w^ho  caused  the  death  is 
unknown,  the  jury  shall  so  find;  and  they  shall  find,  if  the  fact  so  appears 
before  them,  whether  the  killing  was  accidental  or  suicide,  murder  or  man- 
slaughter, excusable  or  justifiable  homicide;  and  if  the  manner  of  the  death  is 
unknown,  they  shall  so  state.  Such  inquisitions  shall  be  signed  by  such 
jurors,  and  the  coroner  shall  certify  the  fact  that  the  inquest  Avas  held,  and 
indorse  under  the  verdict  his  approval  or  non-approval  of  the  same. 

Jii7'y  may  separate. 

Sec.  14.  It  shall  not  be  necessary  that  the  jury  should  be  kept  together 
until  they  have  agreed  upon  a  verdict.  If  there  shall  appear  any  irreconcilable 
opinion  as  to  any  material  fact  concerning  which  they  are  to  make  inquest,  the 
jurors  agreeing  may  find  accordingly,  and  two  or  more  inquisitions  may  be 
presented. 

Coroner. 

Sec.  15.  If  the  jury  find  that  any  murder  or  manslaughter  has  been  commit- 
ted, the  coroner  shall  bind  over  the  witnesses  against  the  accused  to  appear 
and  testify  at  the  next  court  or  grand  juiy,  or  before  any  coui-t  at  which  an 
indictment  for  such  offense  can  be  found  and  triable  that  shall  be  held  in  the 
county,  and  obey  all  orders  of  said  court  in  the  premises.  Such  recognizance 
shall  be  in  writing,  and  shall  be  subscribed  by  the  parties  to  be  bound  thereby. 
Said  recognizances  shall  be  made  payable  to  the  people  of  the  State  of  Califor- 
nia. The  amount  of  the  same  shall  be  fixed  by  the  coroner,  county  judge,  or 
by  the  district  attorney,  and  approved  by  the  county  judge  or  any  of  the  judges 
of  a  court  of  record;  and  in  case  of  their  refusal  to  sign  such  recognizance, 
the  coroner  shall  have  power  to  commit  such  witness  as  in  the  case  of  exami- 
nation of  criminals  by  a  magistrate. 

Testimony  returned  to  county  clerk. 

Sec.  16.  The  testimony  of  all  witnesses  examined  before  a  coroner's  jury, 

555 


4290  POLITICAL  CODE. 

tog-etlier  with  the  inquisition  of  the  jury,  and  all  recognizances  taken  by  such 
coroner,  shall  he  returned  by  him  forthwith  to  the  county  clerk  of  his  county. 

Power  of  coro Iter. 

Sec.  17.  The  coroner  shall  have  the  same  jDOwer  on  all  investigations  or 
inquests  as  are  allowed  by  law  to  judges  of  courts  of  record  in  this  state  to 
preserve  order  in  the  matter  of  investigations  before  him;  and  for  any  disre- 
spect shown  towards  him  or  contempt  of  his  authority  in  his  investigations  by 
any  juror,  witness,  or  other  person,  he  shall  have  power  to  issue  an  order  for 
the  arrest  of  said  j^erson  or  persons,  and  forthwith  to  have  said  person  or 
persons  brought  before  the  police  judge  or  county  judge  of  his  county,  to  be 
punished  according  to  law. 

Coulempt. 

Sec  18.  Any  juror,  witness  or  other  j^erson  summoned  as  juror,  witness,  or 
any  other  person  who  may  be  in  attendance  on  any  official  investigation,  who 
shall  use  any  disrespectful  language  towards  said  coroner,  or  behave  disrespect- 
fully towards  said  coroner  in  his  presence,  shall  be  declared  guilty  of  contempt, 
and  shall  be  Uable  to  pa}-  a  tine  not  to  exceed  one  hundred  dollars,  or  be 
impiisoned  in  the  county  jail  of  said  county  not  to  exceed  sixty  days;  said 
imprisonment  to  be  enforced  by  any  of  the  magistrates  named  in  the  preceding 
sections,  ujion  the  warrant  of  the  coroner  as  provided  for  in  the  last  section. 

To  issue  process. 

Sec.  19.  If  the  coroner's  jury  find  that  any  murder  or  manslaughter  has  been 
committed,  and  the  person  charged  with  such  ofi'ense  be  not  in  custody,  the 
coroner  shall  have  power  to  issue  process  for  the  arrest  of  the  person  charged. 
The  wari'ant  of  an-est  must  be  under  the  hand  of  the  coroner,  and  must  recite 
the  finding  of  the  jur}'  upon  the  inquest,  and  be  directed  to  the  sheriff,  or  to 
any  constable,  marshal,  or  policeman  of  the  count}',  and  commanding  the  officer 
to  whom  it  shall  be  directed  forthwith  to  take  the  person  accused  of  having 
committed  such  offense,  and  to  bring  him  before  a  committing  magistrate,  to 
be  dealt  with  according  to  law.  The  warrant  of  the  coroner  shall  be  served  in 
tlie  same  manner,  and  in  the  same  places  as  criminal  process  issued  by  a  justice 
of  the  peace  in  any  county  of  the  state,  without  indorsement  by  a  magistrate  of 
such  county. 

Burial  of  indigent  dead. 

Sec.  20.  AVheu  the  inquest  shall  be  held  by  the  coroner,  and  there  shall  be 
no  friends  to  take  charge  of  the  body  of  the  deceased,  it  shall  be  the  duty  of 
the  coroner,  after  the  same  has  been  viewed  by  him  and  the  jury,  to  see  that  it 
is  properly  buried,  and  for  that  pur^jose,  he  shall  immediately  give  notice  to 
tlie  i)ers<m  or  firm  having  the  contract  for  the  burial  of  the  indigent  dead,  for 
burial  of  the  body,  and  it  shall  be  buried  by  him,  under  the  provisions  of  said 
contract.  [Amendment,  approved  March  30,  1874;  1873-4,  908;  took  effect  from 
pasmfje. 

Money  and  valuable.^. 

Sec.  21.  It  shall  be  the  duty  of  the  coroner  to  take  charge  of  all  money  and 
other  valuable  things  which  may  be  found  with  or  upon  the  bodies  of  persons 
on  whom  inquests  shull  be  held,  when  there  is  no  other  persons  legally  entitled 
to  take  charge  of  the  same;  and  he  shall  forthwith  make  out  and  enter  in  a 
lx)ok  to  be  kept  in  his  office,  open  to  public  inspection,  a  full  and  complete 
inventory  of  all  money,  and  every  article  or  thing  of  value  found  with  or  upon 
said  deceased,  and  he  hhall  also  make  an  entry  in  said  book,  of  any  note  or 
memorandum  found  u^jon  said  deceased,  that  may  tend,  in  any  way,  in  the 
future,  to  identify  said  person.    Said  coroner  shall,  within  thirty  days  after  the 

5oG 


GOVERNMENT  OF  COUNTIES.  4290 

holding  of  such  inquest,  deliver  over  to  the  treasurer  of  said  city  and  count v, 
all  such  money  or  valuable  things  which  have  not  heen  claimed  l>y  legal  repre- 
sentatives of  the  deceased  or  the  public  administrator.  Said  coroner  shall  also 
keejD  in  his  office  another  book,  open  to  public  inspection,  in  which  he  shall 
enter  a  full  description  of  every  article  and  thing,  and  all  money  found  with  or 
upon  the  bodies  of  deceased  persons,  or  belonging  to  said  deceased  persons, 
that  may  come  into  his  possession,  before  he  delivers  up,  or  i^ermits  the  same 
to  go  out  of  his  possession;  and  no  money,  article,  thing,  or  property  of  any 
nature  or  kind,  shall  be  delivered  to  any  person,  until  the  same  shall  have  been 
entered  in  said  book  as  aforesaid,  and  signed  in  the  presence  of  said  coroner, 
by  the  person  receiving  the  same.  [Amendment,  approved  March  30,  1874; 
1873-4,  908;  took  effect  from  passage. 

Failure  to  perform  duties. 

Sec.  22.  For  a  failure  on  the  part  of  the  coroner  to  perform  such  duty 
required  by  the  last  section,  or  any  of  the  duties  required  by  this  act,  he  shall 
be  deemed  guilty  of  a  misdemeanor,  and  on  conviction  thereof  shall  be  punished 
by  a  fine  not  exceeding  five  thousand  dollars,  or  imprisonment  in  the  county 
jail  not  to  exceed  one  year,  and  shall  be  liable  on  his  official  bond  for  any  and 
all  moneys,  chattels,  and  proj^erty  which  shall  be  found  on  said  deceased,  and 
which  shall  or  may  come  into  his  possession  belonging  to  said  deceased;  the 
same  to  be  recovered  in  the  name  of  any  party  who  may  be  entitled  to  recover 
the  same  in  any  court  ha^•ing  jurisdiction  thereof. 

Property,  how  disposed  of. 

Sec.  23.  Upon  the  delivery  of  money  so  found  to  the  treasurer,  he  shall  place 
it  to  the  credit  of  the  county.  If  other  property,  and  perishable  in  its  nature, 
he  shall  within  thirty  days  sell  the  same  at  public  auction,  upon  reasonable 
public  notice',  and  shall  in  like  manner  place  the  proceeds  to  the  credit  of  the 
county.  Other  property  shall  only  be  sold  upon  the  order  of  the  county  judge. 
If  the  said  money  or  property  in  the  treasury  be  demanded  within  six  years  by 
the  legal  representatives  of  the  deceased,  the  treasurer  shall,  upon  legal  show- 
ing, after  deducting  the  fees  and  expenses  of  the  coroner,  and  of  the  county  in 
relation  to  the  matter,  pay  the  balance  thereof  to  such  legal  representative. 

Statement  of  coroner. 

Sec.  24.  Before  auditing  and  allowing  the  accounts  of  the  coroner,  the  super- 
visors of  the  county  shall  require  a  statement  from  him,  in  writing,  containing 
an  inventory  of  all  money  and  other  valuables  found  with  or  \\\io\i  all  persons 
upon  whom  inquests  shall  have  been  held,  and  the  manner  in  which  the  same 
has  been  disposed  of,  verified  by  the  oath  or  affirmation  of  the  coroner  making 
the  same  that  such  statement  is  in  all  respects  just  and  true,  and  that  the  money 
and  other  articles  mentioned  therein  have  been  delivered  to  the  treasurer  of  the 
county,  or  to  the  legal  representatives  of  such  person  or  persons. 

Coroner  to  act  as  sheriff. 

Sec.  25.  The  coroner  shall  i3erform  the  duties  of  sheriff  in  all  cases  when  the 
sheriff  is  interested  or  otherwise  incapacitated  from  serving.  Whenever  the 
coroner  acts  as  sheriff  he  shall  possess  the  poAvers  and  perform  all  the  duties  of 
the  sheriff,  and  shall  be  entitled  to  the  same  fees  as  are  allowed  by  law  to  the 
sheriff  for  similar  services. 

Vacancy . 

Sec.  2G.  If  the  office  of  coroner  be  vacant,  or  he  be  absent  or  unable  to 
attend,  the  duties  of  his  office  may  be  performed  by  any  justice  of  the  peace  of 
the  county,  with  the  like  authority  and  subject  to  the  same  obligations  and 
penalties  as  the  coroner. 

557 


4290-4301  POLITICAL  CODE. 

Record  of  inquests. 

Sec.  27.  The  coroner  of  the  city  and  county  of  San  Francisco,  in  addition  to 
the  duties  imposed  by  this  act  upon  every  coroner,  shall  keep  a  record  of  all 
im|uest.s  held  by  hiiu,  \Yith  a  copy  of  all  testimony  and  the  inquisition  of  the 
juries  in  full;  and  in  case  of  loss  of  the  on>injd  records,  the  same  shall  be 
admissible  in  evidence  with  like  effect  as  the  oiiginal  would  have  been. 

DepuUj  coroners  and  messenger. 

Sec.  28.  The  coroner  of  said  city  and  county  shall  be  authorized  to  appoint 
two  clerks,  who  shall  be  sworn  to  act  as  first  and  second  deputy  coroners  in  all 
niattei-8,  except  those  duties  on  inquests  which  have  been  forbidden  to  be  dele- 
gated by  this  act.  The  salary  of  the  clerk  sworn  to  act  as  first  deputy  coroner 
shall  not  exceed  one  hundred  and  fifty  dollars  per  month,  and  the  salary  of  the 
clerk  sworn  to  act  as  second  deputy  coroner,  one  hundred  and  twenty-five  dol- 
lars jier  month,  which  shall  be  j)aid  from  the  special  fee  fund  of  the  said  city 
and  county.  The  coroner  of  said  city  and  county  shall  be  authorized  to  appoint 
a  messenger,  whose  duty  it  shall  be  to  have  charge  of  the  dead-wagon,  keep  in 
order  the  morgue,  and  perform  such  other  duties  as  are  required  by  the  coro- 
ner or  his  deputies  in  connection  with  the  duties  of  his  ofiice.  He  shall  receive 
a  salary  not  to  exceed  seventy-five  dollars  per  month,  to  be  paid  in  like  manner 
as  that  of  the  coroner's  clerks.  [Amendment,  approved  March  22,  1876;  1875-6, 
397 ;  took  effect  from  passage. 

Supervisors  to  jn'ovide  rooms  and  morgue. 

Sec  29.  The  board  of  supervisors  of  the  city  and  county  of  San  Francisco 
are  hereby  authorized  to  provide  a  suitable  office  and  jury  room  and  dead-house 
or  morgue,  with  the  furniture  necessaiy^  to  enable  the  coroner  to  efficiently  dis- 
charge the  duties  of  his  office,  and  to  make  the  necessary  appropriation  therefor. 
They  are  further  authorized  to  audit  and  pay,  for  the  necessary  exj^enses  of 
maintaining  the  morgue  and  offices  attached,  such  sum  as  may  be  necessary, 
not  to  exceed  seventy-five  dollars  per  month,  to  be  paid  out  of  the  general 
fund. 

Salarxj. 

Sec.  30.  The  coroner  of  the  city  and  county  of  San  Francisco  shall  receive 
no  fees  fur  any  services  rendered  by  him,  but  he  shall  in  lieu  thereof  receive 
a  salary  of  four  thousand  dollars  per  annum,  payable  in  like  manner  as  other 
county  officers  within  said  county,  to  be  audited  by  the  auditor  and  paid  out  of 
the  same  fund  jirovided  for  in  the  city  and  county  treasury  as  in  the  cases  of 
other  officers  in  said  city  and  county. 
Itej}ealing. 

Sec.  31.  All  acts  or  parts  of  acts  in  conflict  with  the  provisions  of  this  act, 
Ko  far  as  they  so  far  conflict,  are  hereby  repealed.  This  act  shall  apply  only  to 
the  city  and  county  of  San  Francisco. 

Sec.  32.  This  act  shall  be  in  force  from  and  after  its  passage. 

ARTICLE  XI. 

ASRESfiOnS,    TAX    COLLECTOUS,    school    SUPEUINTENDENTS,     public     ADmNISTRATOnS     AND 

COMMISSIONEU    OF    HIGHWAYS. 

4300.  J)iilii'H  of  assesmr. 

Sec.  4300.  Tlie  assessor  must  perforin  such  duties  as  are  i^rescribed  in  Title 
TX,  Part  III,  «.f  this  Code.     |See  ante,  3607.] 

4301.  I  fill  u'n  of  tax  collector. 

Sec.  4301.  The  tax  collector  must  perform  sucli  duties  as  are  prescribed  in 
Title  IX,  Part  III,  of  this  Code,     [See  ante,  3607.] 

558 


GOVEKNMENT  OF  COUNTIES.  4302-4329 

4302.  Duties  of  school  superintendents. 

Sec.  4302.  The  school  superintendent  must  perform  such  duties  as  are  pre- 
scribed in  Title  III,  Part  III,  of  this  Code.     [See  ante,  1385.] 

4303.  Duties  of  public  administrator. 

Sec.  4303.  The  public  administrator  must  perform  such  duties  as  are  pre- 
scribed in  Chapter  XIII,  Title  XI,  Part  III,  of  the  Code  of  Civil  Procedure. 
[See  post,  11,726.] 

4304.  Duties  of  commissioner  of  highwatjs  and  road  overseers. 

Sec.  4304.  The  commissioner  of  liig-hways  and  road  overseers  must  perform 
such  duties  as  are  prescribed  in  Title  VI,  Part  III,  of  this  Code.  [See  ante, 
2348.] 

ARTICLE  XII. 

CONSTABLES,    JUSTICES     OF    THE    PEACE    AND    INFERIOR    OFFICERS. 

4314.  Constables  to  attend  justices'  cotirts. 

Sec.  4314.  Constables  must  attend  the  courts  of  justices  of  the  peace  within 
their  townships  whenever  so  required,  and  within  their  counties  execute,  serve 
and  return  all  process  and  notices  directed  or  delivered  to  them  by  a  justice  of 
the  peace  of  such  county  or  by  any  competent  authority. 

4315.  Governed  by  the  laiv  prescribing  sheriffs'  duties. 

Sec.  4315.  All  the  provisions  of  Article  IV  of  this  chapter,  except  the  fourth 
and  sixth  subdivisions  of  section  417G,  apply  to  constables  and  govern  their 
powei's,  duties  and  liabilities. 

4316.  Duties  of  justices  of  the  peace. 

Sec.  431G.  Justices  of  the  peace  must  perform  such  duties  as  are  prescribed 
in  Title  XI,  Part  II,  of  the  Code  of  Civil  Procedure,  and  such  other  duties  as 
are  prescribed  by  law.     [See  post,  10,832.] 

An  Act  If'galizing  the  official  acts  of  constables  in  this  state,  i^erformed  between  the  first  Mon- 
day of  January  and  the  first  Monday  of  March,  1874. 

Approved  March  27,  1874;  1873-4,  700. 

Official  acts  of  constables  declared  valid. 

Section  1.  All  official  acts  performed  between  the  first  Monday  of  January 
and  the  first  Monday  of  March,  eighteen  hundred  and  seventy-four,  by  the  sev- 
eral constables  in  this  state  who  were  elected  at  the  general  election  held  in  the 
month  of  September,  eighteen  hundred  and  seventy-three,  are  hereby  declared 
valid. 

Sec.  2.  This  act  shall  take  effect  immediately. 

CHAPTER  IV. 

SALASIES  AND   FEES   OF   OFFICE. 

4328.  Salaries  of  county  judges  and  district  attorneys. 

Sec.  4328.  The  salaries  of  county  judges  and  district  attorneys  must  be  paid 
monthly  from  the  county  treasury,  on  the  warrants  of  the  county  auditor. 
Their  salaries  are  fixed  in  the  succeeding  sections  of  this  chapter. 

4329.  Salary  of  county  judges  fixed. 

Sec.  4329.  The  salaries  of  county  judges  are  as  follows: 

1.  Of  San  Francisco,  five  thousand  dollars; 

2.  Of  Sacramejito,  three  thousand  dollars; 

3.  Of  Alameda,  twenty-five  hundred  dollars; 

4.  Of  Nevada  and  Yulia,  twenty-four  hundred  dollars; 

559 


4320  POLITICAL  CODE. 

5.  Of  Amador,  Los  Angeles,  Napa,  Placer,  San  Joaquin,  Santa  Clara,  So- 
lano, and  Sonoma,  two  thousand  dollars; 

6.  Of  Butte,  Colusa,  Contra  Costa,  El  Dorado,  Marin,  Mendocino,  Merced, 
Siskiyou,  Stanislaus,  Sutter,  Tehama,  and  Yolo,  fifteen  hundred  dollars; 

7.  Of  Calaveras,  Fresno,  Humboldt,  Kern,  Mariposa,  Monterey,  Plumas, 
San  Luis  Obispo,   Santa  Barbara,  Santa  Cruz,  Shasta,  Sierra,  and  Tuolumne, 

•  twelve  hundred  dollars; 

8.  Of  Alpine,  Klamath,  Lake,  Lassen,  San  Diego,  San  Mateo,  Trinity,  and 
Tulai-e,  one  thousand  dollars;  and 

9.  Of  Del  Norte,  Inyo,  Mono,  and  San  Bernardino,  eight  hundred  dollars. 

[It  will  be  noticed  that  above  section  4328  provides  that  the  salaries  of  the 
couuty  judges  shall  be  paid  monthly,  and  section  4329  fixes  the  salaries  at  cer- 
tain sums,  without  saying  "  annual"  or  "per  annum."  Whatever  was  meant, 
the  sums  so  fixed  have  in  some  cases  been  altered  by  subsequent  sjjecial  and 
local  laws  as  follows: 

In  Butte  to  two  thousand  dollars  per  annum,  by  act  of  March  27,  1874; 
1873-4,  733. 

In  Colusa  to  twenty-four  hundred  dollars  per  annum,  by  act  of  March  30, 
1874;  1873-4,  873. 

,In  El  Dorado,  it  seems,  to  one  thousand  dollars  per  annum,  by  act  of  March 
27,  1872;  1871-2,  592. 

In  Fresno  to  eighteen  hundred  dollars  j)er  annum,  by  act  of  March  13,  1874; 
1873-4.  349. 

In  Invo  to  twelve  hundred  dollars  per  annum,  by  act  of  February  27,  1874; 
1873-4, 'l77. 

In  Kern  to  eighteen  hundred  dollars  per  annum,  by  act  of  March  13,  1874; 
1873-4,  349. 

In  Lake  to  one  thousand  dollars  per  annum,  by  act  of  March  31,  1876; 
187.5-(;,  .599. 

In  Lus  Angeles  to  three  thousand  dollars  per  annum,  by  act  of  February  2, 
1872;  1871-2,  G2. 

In  Marin  to  eighteen  hundred  dollars  per  annum,  bv  act  of  March  18,  1874; 
1873-4,  433. 

In  ^Mariposa  to  eighteen  hundred  dollars  -pev  annum,  by  act  of  February  7, 
1874;  1873-4,  83. 

In  Merced  to  sixteen  hundred  dollars  per  annum,  by  act  of  March  26,  1874; 
1873-4,  600. 

In  Modoc  the  salarv  is  one  thousand  dollars  per  annum,  by  act  of  Febiniary 
17,  1874;  1873-4,  124. 

In  Napa  to  eighteen  hundred  dollars  per  annum,  by  act  of  March  16,  1874; 
1873-4,  392. 

lu  San  Benito  the  salarv  is  twelve  hundred  dollars  per  annum,  by  act  of  Feb- 
ruary 12,  1874;  1873-4,  95. 

In  San  Bernardino  to  twelve  hundred  dollars  per  annum,  b}'  act  of  February 
17,  1874;  1873-4,  101. 

In  San  Diego  to  two  thousand  dollars  per  annum,  bv  act  of  February  17, 
1874;  1873-4,  101. 

In  Surj_Luis  Obis])o  to  two  thousand  dollars  per  annum,  by  act  of  March  26, 
1874;  l>S(:>-4,  018;  changed  to  eighteen  hundred  dollars  per  annum,  after  1880 
by  act  f>f  March  31,  1870;  1875-6,  008. 

In  San  ^Matoo  to  two  thousand  dollars  per  annum,  by  act  of  March  18,  1874; 
1873-4,479.  ^  "^ 

In  Santa  Clara  to  three  thousand  dollars  per  annum,  by  act  of  March  25, 
1874;  1873-4,  010,  and  by  suhseqiient  act  of  February  10,  1876;  1875-6,  35. 

In  Santa  Cruz  to  twelve  hundred  dollars  per  annum',  by  act  of  March  30,  1876; 
1875-0, 570. 

In  Sonoma  to  three  thousand  dollars  per  annum,  by  act  of  March  10,  1874; 
1873-4,382.  '    "^  .  '  ' 

In  Stanislaus  to  fifteen  hundred  dollars  per  annum,  by  act  of  March  4,  1874; 
1873-4,277.  ^  ^ 

500 


GOVERNMENT  OF  COUNTIES.  4329^330 

In  Tulare  to  eighteen  bundled  dollars  per  annum,  In-  act  of  March  13  1874- 
1873-4,  349. 

In  Tuolumne  to  one  thousand  dollars  per  annum,  by  act  of  Februaiy  10,  1876; 
1875-6,  45. 

In  Ventura  the  salary  is  twelve  hundred  dollars  per  annum,  l)y  act  of  March 
26,  1874;  1873-4,  G18. 

In  Yolo  to  eighteen  hundred  dollars  per  annum,  by  act  of  March  18  1H74- 
1873-4,  420.] 

4330.  Salary  of  district  atforneys  fixed. 

Sec.  4330.  The  annual  salaries  of  district  attorneys  are  as  follows: 

1.  Of  San  Francisco,  five  thousand  dollars. 

2.  Of  Sacramento,  thirty-six  hundred  dollars. 

3.  Of  Los  Angeles,  three  thousand  dollars. 

4.  Of  San  Joaquin,  Santa  Clara,  and  Alameda,  twenty-five  hundred  dollars. 

5.  Of  Butte,  seventeen  hundred  dollars. 

6.  Of  Nevada,  two  thousand  dollars;  and  of  Colusa,  eighteen  hundred 
dollars. 

7.  Of  Sonoma,  eighteen  hundred  dollars. 

8.  Of  El  Dorado,  Placer,  Amador,  Marin,  Contra  Costa,  Tuolumne,  Napa, 
Yolo,  Yuba,  and  Santa  Cruz,  fifteen  hundred  dollars. 

9.  Of  Mariposa,  Merced,  San  Mateo,  Shasta,  Siskiyou,  Stanislaus,  Tehama, 
Fresno,  Kern,  Mendocino,  San  Luis  Obispo,  Santa  Barbara,  Tulare,  San  Diego, 
and  Plumas,  twelve  hundred  dollars. 

10.  Of  Monterey,  Sutter,  Tiinity,  Sierra,  and  Calaveras,  one  thousand 
dollars. 

11.  Of  Inyo  and  Lassen,  eight  hundred  dollars. 

12.  Of  Del  Norte,  Humboldt,  Klamath,  Lake,  and  San  Bernardino,  seven 
hundred  dollars. 

13.  Of  Ali^ine,  six  hundred  dollars. 

14.  Of  Mono,  five  hundred  dollars.  [Amendment,  approved  March  28,  1872; 
1871-2,  653;  took  effect  from  passage. 

[The  foregoiug  amendment  constituted  section  1  of  "An  Act  in  relation  to 
the  political  code, "  approved  March  28,  1872;  1871-2,  653.  That  act  contained 
two  additional  sections,  as  follows:] 

Sec.  2.  With  relation  to  the  acts  passed  at  the  present  session  of  the  legisla- 
ture, section  forty -three  hundred  and  thirty  of  the  Political  Code  must  be  con- 
strued as  though  it  had  been  passed  on  the  last  day  of  the  present  session. 

Sec.  3.  This  act  and  section  forty-three  hundred  and  thirty  of  the  Political 
Code  as  herein  amended,  shall  be  iniorce  and  effect  from  and  after  the  passage 
of  this  act. 

An  Act  in  relation  to  the  office  of  iliatrict  attorney  in  Santa  Crnz  county. 
Approved  March  20,  1872;  1871-2, 140. 

District  attorney' s  fee  in  Santa  Cruz  county. 

Section  1.  In  all  cases  where  the  district  attorney  of  Santa  Cniz  county 
secures  a  conviction  of  any  person  charged  with  felony  or  misdemeanor,  and 
cannot  obtain  the  fee  allow-ed  by  law  for  such  conviction  from  the  person  con- 
victed, the  said  fee  shall  be  a  charge  against  the  county,  and  shall  be  allowed 
and  paid  as  other  claims  and  charges  against  said  county. 

Sec  2.  This  act  shall  take  effect  immediately. 

An  Act  to  better  define  the  duties  and  fix  the  compensation  of  certain  officers  of  Solano 

county. 

Approved  March  27,  1872;  1871-2,  G24. 

Sheriff,  license  collector. 

Section  1.  The  sheriff  of  Solano  county  shall  be  ex  officio  collector  of  all 
36  561 


4330  POLITICAL  CODE. 

licenses  in  said  county,  and  receive  therefor  the  fees  now  allowed  by  law,  and 
be  allowed  as  jailer  a  salary  of  twelve  hundred  ($1200)  dollars  per  annum, 
which  shall  be  paid  monthly  out  of  the  county  treasury  of  said  county. 

Salaiy  of  comity  cleric. 

Sec  2.  The  county  clerk  of  said  county  shall  receive  for  all  services  required 
of  him  as  county  clerk  and  ex  officio  clerk  of  the  district  court,  county  court, 
probate  court,  board  of  supervisors,  and  board  of  equalization,  a  salary  of  four 
thousand  dollars  per  annum,  which  salary  shall  be  in  full  for  all  services  re- 
quired uf  him  as  aforesaid,  and  it  shall  be  paid  monthly  out  of  the  county  treas- 
ul•^•.  He  shall  collect  and  safely  keep  all  fees  of  whatever  kind  or  nature 
allowed  him  by  law  for  sen-ices  rendered  by  him  in  his  several  official  capacities, 
and  upon  the  first  Monday  of  each  and  every  month  shall  pay  the  same  over  to 
the  county  treasurer  of  said  county,  and  shall  at  the  same  time  make  out  and 
tile  with  said  treasurer  a  full  and  accurate  statement,  under  oath,  of  all  fees,  of 
whatever  kind  or  nature,  received  in  his  several  official  cajDacities  for  the  pre- 
ceding month. 

Salary  o/diafrict  attorney. 

Sec.  3.  The  district  attorney  of  said  county  shall  receive  a  salary  of  two  thou- 
sand and  two  hundred  dollars  j^er  annum,  which  shall  be  paid  monthly  out  of 
the  treasury  of  said  county. 

Duty  of  auditor. 

Sec.  Jr.  It  shall  be  the  duty  of  the  county  auditor  of  said  county,  on  the  first 
^londay  of  each  and  every  month,  to  draw  a  warrant  upon  the  county  treasurer, 
in  favor  of  the  officers  herein  named,  for  the  amount  of  salary  due  each  month 
under  the  provisions  of  this  act;  and  said  warrants  shall  be  paid  in  gold  and 
silver  coin  on  presentation  to  the  county  treasurer. 

Sec  5.  This  act  shall  take  effect  from  and  after  its  passage;  and  all  acts  and 
parts  uf  acts,  so  far  as  they  conflict  with  the  provisions  of  this  act,  are  hereby 
repealed. 

An  Act  iu  relation  to  the  fees  of  district  attorneys  in  certain  counties. 
Approved  Mirch  30,  1872;  1871-2,  799. 

Fees  of  district  attorneys  in  Butte,  Inyo,  Placer,  and  Shasta. 

Seciion  1.  In  the  counties  of  Butte,  Inyo,  Placer,  and  Shasta,  the  fees  allowed 
to  district  attorneys  for  convictions  must  be  taxed  as  costs  against  the  defend- 
ants, but  if  the  defendant  is  unable  to  pay  the  same,  they  are  a  county  charge 
and  must  be  paid  out  of  the  county  treasury. 

Sec,  2.  This  act  shall  be  iu  force  from  and  after  its  passage. 

(The  salaries  of  district  attorneys  in  some  of  the  counties,  as  above  fixed, 
have  since  been  changed  by  special  and  local  laws  as  follows: 

In  Amador  to  twelve  hundred  and  fifty  dollars  per  annum  and  certain  fees, 
by  act  of  March  20,  187G;  1875-G,  370. 

In  Butte  to  two  thousand  dollars  per  annum  and  certain  fees,  by  act  of  March 
27,  1874;  1873-4,  733. 

In  Calaveras  to  one  thousand  dollars  per  annum,  and  payable  monthly,  and 
certain  fe^-s  after  March  1,  1 878,  l)y  act  of  March  7,  1870;  1875-G,  141. 

In  Cohisa  to  two  thousand  <loihirs  per  annum,  by  act  of  March  30,  1874; 
1873-4,  873. 

In  ( 'ontra  Costa  to  eight  hundred  dollars  per  annum  and  fees,  by  act  of  March 
2,  1870;  1875-G,  5J1. 

In  Humlioldt  to  twelve  humlred  dollars  per  annum,  payable  monthly,  by  act 
of  February  9,  187G;  1875-0,  34. 

In  Inyo  to  one  thousand  dollars  per  annum,  by  act  of  February  27,  1874: 
1873-4,  177.  ^  J       '  ' 

562 


GOVERNMENT  OF  COUNTIES.  4330-4332 

In  Lake  to  seven  hnndred  dollars  per  aiiniini  and  certain  fees  l)y  act  of  ^Marcli 
31,  liS7G;  1875-G,  599. 

In  Marin  to  one  thousand  dollars  per  annum,  by  act  of  ]\Iarcli  18  1874- 
1873-4,  433. 

In  Mariposa  to  eight  hundred  dollars  per  annum,  bv  act  of  February  7  1.S74- 
1873-4,  83.  ... 

In  Merced  to  one  thousand  dollars  per  animm,  by  act  of  March  '2i\  1H74- 
1873-4,  G60. 

In  Modoc  the  salary  is  five  hundred  dollars  per  annum  and  foes,  by  act  of 
February  17,  1874;  1873-4,  124. 

In  Napa  to  one  thousand  dollars  per  annum  and  fees,  by  act  of  Marcli  10, 
1874;  1873-4,  392. 

In  Sacramento  to  forty-two  hundred  dollai's  per  annum,  bv  act  of  March  30, 
1874;  1873-4,  909.  See  also  acts  of  April  1,  1872;  1871-2,^803;  February  28, 
1874;  1873-4,  204;  and  March  30,  1874;  1873-4,  794. 

In  San  Benito  the  salary  is  twelve  hundred  dollars  per  annum,  by  act  of  Feb- 
ruary 12,  1874;  1873-4,  95. 

In  San  Bernardino  to  one  thousand  dollars  per  annum,  bv  act  of  Marcli  22, 
1876;  1875-6,  389. 

In  San  Diego  to  twelve  hundred  dollars  j^er  annum  and  fees,  by  act  of  March 
31,  1876;  1875-6,  586. 

In  San  Francisco  the  district  attorney  is  allowed  a  second  clerk  at  a  salary  of 
one  hundred  and  fifty  dollars  per  mouth,  by  act  of  Marcli  25,  1874;  1873-4,  602. 

In  San  Joaquin  to  two  thousand  dollars  per  annum  and  fees,  by  act  of  March 

24,  1874;  1873-4,  575. 

In  San  Luis  Obispo  to  one  thousand  dollars  per  annum  and  certain  fees,  by 
act  of  March  31,  1876;  1875-6,  608. 

In  Santa  Clara  to  five  hundred  dollars  per  annum  and  fees,  by  act  of  ]\Iarcli 

25,  1874;  1873-4,  610;  and  subsequent  act  of  February  10,  1876;  1875-(),  35. 
In  Santa  Cruz  to  five  hundred  dollars  per  annum  and  fees,  by  act  of  March 

30,  1876;  1875-6,  576. 

In  Sonoma  to  eighteen  hundred  dollars  per  annum  and  fees,  bv  act  of  March 
16,  1874;  1873-4,  382. 

In  Stanislaus  to  twelve  hundred  dollars  per  annum,  by  act  of  March  4,  1874; 
1873-4,  277. 

In  Sutter  the  fees  on  conviction  for  felony  or  misdemeanor  are  the  same  as  in 
Lake,  by  section  21  of  act  of  March  31,  1876;  1875-6,  599. 

In  Tuolumne  to  eight  hundred  dollars  per  annum  and  fees,  bv  act  of  February 
10,  1876;  1875-6,  45. 

In  Ventura  the  salary  is  eight  hundred  dollars  per  annum,  by  act  of  March 

26,  1874;  1873-4,  618. 

In  Yolo  to  one  thousand  dollars  per  annum  and  fees,  by  act  of  March  18, 
1874;  1873-4,  420;  and  by  subsequent  act  of  March  9,  1876;  1875-6,  170.] 

4331.  Continuing  acts  fixing  salaries  and  fees  of  count  ij  officers. 

Sec.  4331.  Nothing  in  this  code  not  contained  in  this  chapter  affects  any  of 
the  provisions  of  the  statutes  relating  to  the  compensation,  salaries,  or  fees  of 
county  or  townshij)  officers;  but  all  such  statutes  are  recognized  as  continuing 
in  force,  notwithstanding  the  provisions  of  this  code,  except  so  far  as  they  are 
affected  by  or  are  inconsistent  with  the  provisions  of  this  chapter. 

[For  references  to  special  statutes  referred  to  in  the  foregoing  section,  see 
under  the  heads  of  the  respective  counties  in  the  latter  part  of  this  work.  | 

4332.  Officer  to  perfoi^m  service  when  fees  are  paid. 

Sec.  4332.  The  officers  mentioned  in  this  title  are  not  in  any  case,  except  for  the 
state  or  county,  to  perform  any  official  services,  unless  upon  the  prepayment  of 
the  fees  prescribed  for  such  services,  except  as  in  the  succeeding  section  provided 
by  law;  and  on  such  payment  the  officer  must  perform  the  services  required. 
For  every  failure  or  refusal  to  perform  official  duty  when  the  fees  are  tendered, 
the  officer  is  liable  on  his  official  bond. 

563 


i333-4346  POLITICAL  CODE. 

4333.  ^'o  charge  to  be  made  on  proceedings  under  icrit  of  habeas  corpus. 

Stc.  4333.  No  fee  or  compensation  of  any  kind  must  be  charged  or  received 
by  any  officer  for  duties  performed  or  services  rendered  in  proceedings  upon 
habeas  corpus. 

CHAPTEE  V. 

OTHER   COUNTY  CHAEGES. 

4343.  Couiiti/  chaj-ges  to  be  audited. 

Sec.  4343.  Accounts  for  county  charges  of  every  description  must  be  presented 
to  the  board  of  supervisors  to  be  audited,  as  jDrescribed  in  Article  III  [Chapter 
II  ],  Title  II,  Part  IV,  of  this  Code.     [See  ante,  4UG4.  | 

4344.  Kcamination  of  county  charges. 

Sec.  4344.  The  following  are  county  charges: 

1.  Charo-es  incurred  against  the  county  bj^  virtue  of  any  provision  of  this  title; 

2.  The  compensation  of  the  district  attorney,  and  all  expenses  necessarily 
incurred  by  him  in  criminal  cases  arising  Avithin  the  county; 

3.  The  compensation  allowed  by  law  to  sheriffs  and  constables  for  executing 
]>rucess  on  persons  charged  with  criminal  offenses;  for  services  and  expenses  in 
conveying  ci'imiuals  to  jail;  for  service  of  subpoenas  issued  by  district  attorneys, 
and  for  other  services  in  relation  to  criminal  proceedings  for  which  no  specific 
compensation  is  prescribed  by  law; 

4.  The  expenses  necessarily  incurred  in  the  support  of  persons  charged  with 
or  convicted  of  crimes  and  committed  therefor  to  the  county  jail; 

5.  The  sums  required  by  law  to  be  paid  to  grand  jurors  and  indigent  witnesses 
in  criminal  cases; 

(i.  The  accounts  of  the  coroner  of  the  county  for  such  services  as  are  not 
]  provided  to  be  paid  othen\use; 

7.  All  charges  and  accounts  for  services  rendered  by  any  justice  of  the  peace 
for  services  in  the  examination  of  persons  charged  with  crime  not  otherwise  pro- 
vided for  by  law; 

8.  The  necessary  expenses  incurred  in  the  support  of  county  hospitals,  and 
the  indigent  sick  and  the  otherwise  dependent  j^oor  whose  support  is  chargeable 
to  the  county; 

9.  The  contingent  expenses  necessarily  incurred  for  the  use  and  benefit  of  the 
county ; 

10.  Even'  other  sum  directed  by  law  to  be  raised  for  any  county  purpose 
under  the  direction  of  the  board  of  supervisors,  or  declared  to  be  a  county 
charge ; 

11.  The  salaiy  of  the  commissioner  of  highways  must  be  paid  at  the  close  of 
each  quarter. 

4345.  Costs  of  rrirninal  action  removed. 

Sec.  4345.  AVhen  a  criminal  action  is  removed  before  trial,  the  costs  accruing 
upon  such  removal  and  trial  shall  be  a  charge  against  the  county  in  which  the 
indictment  was  found.  [New  section,  apqjvoved  February  28,  1874;  Amendments 
1873 -4, 17.5;  torj/c  iji'crt  immediately. 

4346.  I'rtx-ecdings  in  collection  of  such  costs. 

Sec.  4340.  The  clerk  of  the  county  to  wliich  such  action  is  removed,  shall  cer- 
tify the  amount  of  costs  allowed  and  certified  by  the  court  to  the  auditor  of  his 
county,  and  such  auditor  shall  audit  the  same  and  draw  his  warrants  therefor 
ujion  the  treasuiy  of  the  county  from  Avhich  such  action  was  removed;  and  such 
auditor  shall  fonvard  to  said  treasurer  and  auditor  of  the  county  from  which 
said  action  was  transferred,  as  aforesaid,  a  certified  copy  of  the  total  amount  of 
costs  allowed  by  the  court,  giving  each  item  as  certified  to  him  by  the  county 

CC4 


GOVERNMENT  OF  CITIES.  434(;-43o7 

clerk  and  the  court,  and  the  auditor  receiving  such  certified  copy  of  said  costs 
allowed,  shall  enter  the  same  in  his  books  as  a  charge  against  the  treasury  of 
his  county,  and  the  county  treasurer  of  the  county  from  winch  such  action  was 
removed,  must  immediately  ujion  presentation  pay  said  warrant  out  of  the  gen- 
eral fund  of  said  county;  or,  if  at  the  date  of  presentation  there  is  not  suflicient 
moneys  in  the  said  general  fund  to  pay  the  same,  he  must  indorse  u])on  said 
warrant  "Not  paid  foi* want  of  funds;"  and  said  warrant  must  be  registered, 
and  shall  draw  interest  at  the  same  rate  and  be  paid  in  the  same  manner  as 
though  it  had  been  drawn  by  the  auditor  of  the  county  where  the  indictment 
was  found.  [New  section,  cq:)proved February  28, 1874;  xhnendmenls  1873-4,  175; 
took  effect  immediately. 

4347,  Provisions  of  code,  to  what  actions  to  apply. 

Sec.  4347.  Sections  4845  and  4346  of  this  code  shall  apply  to  all  criminal 
actions  which  have  been  or  may  be  removed  for  trial  since  the  first  day  of  Jan- 
uary, eighteen  hundred  and  seventy-three,  [New  section,  approved  February  2^, 
1874;  Amendments  181  ^-4t,  175;  took  effect  immediately . 


TITLE  III. 

f Ijc  COouciiimcnt  of  tfitjt$. 

Chapter  I.    Cities  as  Bodies  Corporate 4354 

II.    Executive  Powers 4385 

III.  Legislative  Powers 4403 

IV.  Judicial  Powers 4424 

V.    Certain  Statutes  relating  to  Cities  and  Towns  and  existiJig 

Corporations  continued 4442 

CHAPTEK  I. 

CITIES  AS  BODIES  COEPORATE. 
4364,   General  powers. 

Sec.  4354.  A  city  is  a  body  politic  and  corporate,  with  the  general  powers  of 
a  corporation,  and  the  powers  specified  or  necessarily  implied  in  this  title  or  in 
special  laws. 

4355.  Distribution  of  poivers. 

Sec.  4355.  Every  city  has  legislative,  executive,  and  judicial  power.  Its 
legislative  powder  is  vested  in  a  common  council;  its  executive  power  in  a  mayor 
and  his  subordinate  ofiicers;  and  its  judicial  power  in  a  police  court. 

4356.  City  declared  by  legislature. 

Sec.  4356.  Every  subdivision  of  a  county  not  exceeding  in  extent  six  square 
.  miles,  with  not  less  than  two  thousand  inhabitants,  with  its  metes  and  bounds 
fixed  and  defined,  and  declared  by  act  of  the  legislature  to  be  a  "municipal 
corporation,"  is  a  city  with  the  powers  conferred  by  this  title. 

4357.  Boundaries,  how  changed. 

Sec.  4357.  The  boundary  of  a  city  may  be  changed  by  an  act  of  tlie  legisla- 
ture, on  petition  of  a  majority  of  the  common  council,  presented  in  pursuance 
of  a  city  ordinance,  or,  as  hereinafter  provided,  by  the  board  of  supervisors. 

[Secs.  4358  to  4365,  inclusive,^"'  were  repealed  by  act  approved  Marfli  28, 

(a)  The  repealed  sections,  on  account  of  their  length  they  Bhould  present  a  petition  to  the  board  of  super- 

and   the   fact   that  thev   never   went  into   effect,    are  visors  therefor,  etc.,  etc.     They  were  Riipersedcd,  as 

omitted.     They  provided   that   "whenever  the  resi-  above  stated,  by  the  operation  of  the  act  of  febniary  1. 

dents  of  a  county  adjoining  the  boundary  of  a  city  1^72,  which  was  itself  subsequently  repealed  by  act  of 

therein    desire  to  become    incorporated   therewith,"  March  23,  187-t;  1873-4,  535. 

565 


4357-4373  POLITICAL  CODE. 

1^74;  Auieudmeuds  1873-4,  177;  took  effect  immediately.  They  had,  however, 
been  previously  superseded  by  tlie  operation  of  a  separate  act  relating  to  the 
same  subject-matter,  approved  February  1, 1872;  1871-2,  50.  This  last-named 
act.  entitled  "An  Act  to  enable  the  inhabitants  of  territory  adjacent  to  any  city 
in  this  state  to  annex  the  same  thereto,"  was  repealed  by  act  approved  March 
23,  1874;  1873-4,  535.] 

4366.  Act  to  fix  time  of  the  first  election. 

Sec  43GG.  The  act  of  the  legislature  declaring  a  city  to  be  a  "  municipal  cor- 
pomtion  "  must  fi.x  a  day  for  the  first  election  of  city  o:6fieers,  and  fix  the  number 
of  membei-s  of  the  "  common  council "  to  be  elected  for  the  first  year. 

4367.  First  election,  ichen  and  how  held. 

Sec.  4367.  Notice  of  the  first  election  of  city  officers  must  be  given  by  the 
county  judge  of  the  county,  b}'  publishing  the  same  in  a  newspaper  published 
in  tlie  city  for  four  weeks  successively,  designating  the  officers  to  be  elected,  the 
polling  places,  and  the  officers  of  election.  The  returns  must  be  made  to  the 
county  judge,  who  must  count  and  declare  the  vote,  and  issue  certificates  of 
election. 

4368.  ll7io  a7'e  city  electors. 

Sec.  4308.  The  qualified  electors  of  the  city  who  have  resided  within  the  city 
limits  for  thirty  days  next  preceding  the  election  are  qualified  to  vote  at  all  city 
elections. 

4369.  Officers. 

Sec  43G9.  The  common  council  must,  during  the  first  year,  by  ordinance,  fix 
the  term  of  office  of  all  elective  officers,  and  the  time  when  they  must  be  elected, 
and  provide  for  the  ai^pointment  of  other  necessary  officers,  including  city  clerk, 
city  attorney,  and  treasurer,  and  fix  their  terms  and  amount  of  their  bonds. 
[Aineialment,  approved  March  30,  1874;  Amendments  1873-4,  57;  took  effect  July 
«;,  1874.''' 

4370.  officers  of  cities. 

Sec.  4370.  The  elective  officers  of  cities  are :  a  mayor,  a  marshal,  a  police 
judge,  a.ssessor  and  collector  of  taxes,  and  a  common  council,  consisting  of  not 
less  than  three  members.  They  must  be  electors  of  the  city,  and  qualify'by 
taking  the  statutory  oath  of  office,  and,  except  the  first  officers  elected,  hold 
office  for  a  term  to  be  fixed  by  the  common  council,  not  exceeding  two  years. 
[AmnidmeiU,  approved  March  30,  1874;  Amendments  1873-4,  58;  took  effect  July 
<;,  1874."" 

4371.  Direct  laxes. 

Sec  4371.  The  direct  taxes  imi:)osed  l)y  the  common  council  in  any  one  year 
must  not  exc6ed  two  per  centum  of  the  valuation  of  property  within  the  city. 

4372.  Condemnation  of  private  property  for  city  use. 

Sec  4372.  "Whenever  it  becomes  necessary  for  the  city  to  take  private  jiroj)- 
<rty  for  the  ])urposos  of  hiving  out  or  altering  streets  or  alleys,  and  the  council 
c.-innot  agree  with  the  owner  thereof  as  to  the  price  to  be  paid,  the  council  may 
direct  proceedings  to  be  taken  under  Title  VII,  Part  III,  of  the  Code  of  Civil 
Procedure,  to  procure  the  same.     [See  jiost,  11,237.] 

4373.  Vacancies  in  office. 

Shx-,  4373.  If  any  person  elected  to  a  city  office  removes  from  the  city,  ab- 
•  lits  himself  for  more  thuii  thirty  days  without  leave  from  the  council,  or  fails 
■■)  <j[ualify  within  ton  days  after  election,  his  office  is  vacant. 

{")  Till-  orfffjnnl   Mili'.ii  had  tin-  wopIk  •■uKs.HHor  (h)  The  orisinal  Rertion  did  not  have  the  words  "as- 

and  coUector  of  Uxcb  "  before  '•  city  clerk."  seBsor  and  coUector  of  tuxes." 

560 


GOVEKNMENT  OF  CITIES.  4374-4388 

4374.    Officicd  oath  and  bond. 

Sec.  4374.  All  city  officers,  before  enteiing-  upon  tlioir  duties,  must  take  the 
oatli  of  office.  The  marshal,  attorney,  clerk,  assessor,  collector,  and  treasurer, 
must  also  give  a  bond,  with  sureties  to  be  approved  by  the  maycjr,  i)iiyable  to 
the  corporation  by  its  cor})orate  name,  in  such  i)enalty  as  may  be  prescribed  by 
ordinance,  conditioned  for  the  faithful  performance  of  the  duties  of  their  office, 
and  a  like  bond  may  be  required  of  any  officer  whose  office  is  created  by  an 
ordinance.  Should  the  bond  of  any  city  officer  become  insufficient,  he  may  be 
required  to  give  additional  bond;  and,  upon  his  failure  so  to  do,  his  office  must 
be  deemed  vacant.  [Amendment,  approved  March  30,  1874;  Amendments  1873-4, 
58;  took  effect  July  G,  1874.'*> 

CHAPTER  II. 

EXECUTIVE  POWERS. 

4385.  Executive  officers  of  a  city. 

Sec.  4385.  The  executive  officers  of  a  city  are  the  mayor,  marshal,  and  such 
officers  for  the  assessment,  collection,  auditing,  safe  keei:)ing,  and  disl)ursing 
the  revenue  and  keeping  the  records  and  journals  of  the  city,  as  the  common 
council  may  j)rovide. 

43H6.  Powers  of  mayor. 

Sec  4386.  The  mayor  has  power: 

1.  To  nominate,  and  with  the  consent  of  the  common  council,  to  appoint  all 
non-elective  officers  of  the  city  provided  for  by  the  common  council,  including 
city  attorney,  secretary  of  the  council,  and  city  treasurer;* 

2.  To  suspend,  and  with  the  consent  of  the  common  council,  to  remove  any 
non-elected  officer,  stating  in  the  suspension  or  removal  the  cause  thereof; 

3.  To  cause  the  ordinances  of  the  city  to  be  executed,  and  to  supervise  the 
discharge  of  official  duty  by  all  subordinate  officers; 

4.  To  communicate  to  the  common  council,  at  the  beginning  of  every  session, 
and  oftener  if  deemed  necessary,  a  statement  of  the  afi'airs  of  the  city,  \vith  such 
recommendations  as  he  may  deem  proper; 

5.  To  recommend  to  the  common  council  such  measures  connected  with  the 
public  health,  cleanliness,  and  ornament  of  the  city,  and  the  improvement  of 
the  government  and  finances,  as  he  deems  expedient; 

6.  To  approve  all  ordinances  of  the  common  council  adopted  by  it,  and  in 
case  the  same  do  not  meet  his  apjirobation,  to  return  the  same,  Avith  his  objec- 
tions, within  five  da^'s  after  he  receives  the  same.  [Amendment,  approved  March 
30,  1874;  Amendments  1873-4,  59;  too/c  effect  July  6,  1874."" 

4387.  Accounts  and  demands,  hmo  audited  and  paid. 

Sec.  4387.  All  accounts  and  demands  against  said  city  must  be  audited  by 
the  president  of  the  common  council,  and  no  money  must  be  drawn  from  the 
city  treasury,  unless  upon  the  certificate  of  the  president,  by  order  of  the  council. 
The  certificate  must  be  drawn  upon  the  treasurer  of  the  city,  and  must  s^iecify 
the  fund  out  of  which  the  same  is  payable.  The  treasurer  must  pay  the  same 
out  of  any  money  in  his  hands  belonging  to  such  fund. 

4388.  Mayor,  p)resident  of  the  common  council. 

Sec.  4388.  The  mayor  is  the  president  of  the  common  council,  must  sign  the 
journals  thereof,  decide  by  his  voice  all  tie  votes,  must  sign  the  warrants  on  the 
city  treasurer,  and  is  the  keej^er  of  the  city  seal. 

ia)  The  original  section  did  not  liave  the  word  "col-  (h)  The  originnlBectlon  inthe  ttret  Bubdlvision  aftf-r 

lector."  including  had  the  words  "asseseor  and  collector  of 

revenue." 

567 


4389-4404  POLITICAL  CODE. 

4389.  Duties  of  cHy  mai'shal. 

Sec.  4389.  The  city  marshal,  in  addition  to  the  duties  prescribed  hj  the  com- 
mon council,  must  execute  and  return  all  jn-ocess  issued  by  the  police  judge,  or 
directed  to  him  by  any  legal  authority,  and  attend  upon  the  police  court  regu- 
larly.  He  may  appoint  one  or  more  deputies;  and  must  arrest  all  persons  guilty 
of  a  breach  of  the  peace  or  for  the  violation  of  any  city  ordinance,  and  bring- 
them  before  the  police  judge  for  trial,  and  has  superintending  control  over  the 
city  police;  and,  until  otherwise  provided  by  ordinance,  must  perform  all  duties 
of  collector  of  city  taxes. 

4390.  Duties  of  assessor. 

Si-c.  4390.  The  assessor,  in  addition  to  the  duties  prescribed  by  the  common 
council,  must  make  out,  within  such  time  as  the  common  council  orders,  a  cor- 
rect list  of  all  the  taxable  property  within  the  city  limits,  with  the  valuation 
thereof,  which  list  certified  by  him  must  be  returned  to  the  common  council. 
The  mode  of  making  out  the  list  and  of  ascertaining  the  value  of  property,  and 
of  collecting  all  taxes,  is  the  same  us  prescribed  in  this  code  for  assessing  and 
collecting  the  state  tax. 

4391.  Duties  of  city  attorney. 

Slc.  4391.  The  city  attorney  must  attend  to  all  suits,  matters,  and  things  in 
which  the  city  may  be  legally  interested;  to  give  his  advice  or  opinion  in  writ- 
ing whenever  required  by  the  mayor  or  common  council,  and  do  and  perform 
all  such  things  touching  his  oflEice  as  by  the  common  council  may  be  required  of 
him. 

4392.  Duties  of  treasurer. 

Sec  4392.  The  treasurer  must  receive  all  moneys  that  come  to  the  city  either 
from  taxation  or  otherwise,  and  pay  the  same  out  on  the  certificate  of  the  presi- 
dent of  the  common  council,  and  do  and  perform  all  other  acts  as  are  prescribed 
for  him  by  the  common  council.  He  must,  on  the  first  days  of  January,  April, 
July,  and  October  of  each  year,  make  out  and  present  to  the  maj'or  a  full  and 
coniplete  statement  of  the  receipts  and  expenditures  of  the  preceding  three 
months,  which  statement  the  mayor  must  cause  to  be  published. 

4393.  Duties  of  clerk. 

Sec.  4393.  The  city  clerk  is  clerk  of  the  common  council;  must  keep  the 
journal  of  their  proceedings  and  all  records  of  the  city;  he  must  keep  the 
accounts  of  the  city,  and  countersign  all  warrants  on  the  city  treasurer;  keep  a 
true  account  thereof  and  of  the  financial  condition  of  the  city,  and  do  such 
other  things  as  the  common  council  ma}'-  by  ordinance  provide. 

CHAPTEK  III. 

LEGISLATIVE   POWERS. 

4403.  Common  council. 

Sec.  4403.  The  common  council  consists  of  not  less  than  three  citizens  of  the 
city,  elected  (ine  fi<nu  each  of  the  wards.  The  mayor  is  the  presiding  officer 
tljereof. 

4404.  MV//v/>-,  hikI  number  of. 

Si.c.  4404.  The  counnon  council  has  power* to  divide  the  cit}'  into  a  con- 
venient number  of  wards,  fix  the  boundaries  thereto,  and  may  change  the  same 
from  time  to  time  as  they  see  fit,  having  regard  to  the  number  of  w'hite  male 
inhabitants,  so  that  eacli  ward  contains  as  near  as  may  be  the  same  number  of 
inhabitants.  The  nuiulter  of  wards  of  any  city  must  not  exceed  the  number  of 
couiiciliucn  to  which  tlie  city  is  entitled  ;  and  when  a  city  has  been  so  divided 
the  councilmen  must  be  elected  from  the  several  wards  respectively,  according 
to  the  number  of  inhabitants. 

5G8 


GOVERN^IENT  OF  CITIES.  4405-4408 

4405.  First  meeting. 

Sec.  4405.  The  members  of  the  common  council  must  assemble  Antliiu  five 
days  after  their  election,  and  choose  some  suitable  person  as  clerk.  In  case  of 
the  absence  of  the  maj'or  they  may  elect  a  president  pro  tempore,  who  has  all 
the  powers  and  must  perform  all  the  duties  of  the  president.  They  must,  by 
ordinance,  fix  the  times  and  places  of  holding  their  stated  meetiugs,  and  may 
be  convened  by  the  mayor  at  any  time. 

4406.  Quorum. 

Sec.  440G.  A  majority  of  the  members  of  the  common  council  constitutes  a 
quorum  to  do  business;  but  a  less  number  may  adjourn  from  day  to  day,  and 
may  compel  the  attendance  of  absent  members  in  such  manner  and  under  such 
penalties  as  the  council  may  by  ordinance  prescribe. 

4407.  3Iay  make  rules,  etc. 

Sec.  4407.  The  common  council  is  the  judge  of  the  qualification,  elections, 
and  returns  of  their  own  members  and  the  other  ofiicers  elected  under  the  pro- 
visions of  this  title.  They  may  determine  contested  elections;  they  may  provide 
rules  for  their  own  proceedings,  punish  any  member  or  other  person  for  dis- 
orderly conduct  in  their  presence,  and,  with  the  concurrence  of  two  thirds  of 
their  number,  expel  any  member,  but  not  a  second  time  for  the  same  cause; 
they  must  keep  a  journal  of  their  proceedings,  and  at  the  desire  of  any  member 
must  cause  the  yeas  and  nays  to  be  taken  and  entered  on  any  question;  and 
their  proceedings  must  be  public. 

4408.  Additional  powers  of  common  council. 
Sec.  4408.  The  common  council  has  power: 

1.  To  create  the  offices  of  city  clerk,  city  attorney,  assessor,  and  collector,  and 
such  other  oflBces  as  may  be  necessary,  and  prescribe  their  duties  and  fix  their 
compensation; 

2.  To  establish  and  fix  the  salaries  of  the  mayor,  police  judge,  and  other  city 
ofiicers,  and  also  fix  a  tariff  of  fees  for  the  officers  entitled  to  such,  designating 
the  fees  allowed  for  each  j^articular  item  of  service,  and  cause  the  same  to  be 
j)ublished  in  like  manner  with  the  ordinances  passed  by  the  common  council; 

3.  To  manage  the  finances  and  property  of  the  city; 

4.  To  regulate  the  streets,  wharves,  piers,  and  chutes  in  the  city,  and  the  use 
thereof; 

5.  To  establish  or  authorize  slaughter-houses  and  markets,  and  regulate  the 
same; 

G.  To  provide  for  lighting,  watering,  and  cleaning  the  city,  and  protecting  it 
against  fire; 

7.  To  license  and  regulate  hacks,  cabs,  carts,  omnibuses,  railway  cars,  and 
all  other  vehicles,  butchers,  porters,  pawnbrokers,  peddlers,  showmen,  and 
junk-shop  keepers,  theatres,  and  all  other  places  of  public  amusement; 

8.  To  provide  for  licensing  any  or  all  business  not  prohibited  by  law,  and  fix 
the  amount  of  license  tax  for  the  same; 

9.  To  regulate  the  keeping  and  use  of  animals,  and  the  keeping  and  use  of 
gunpowder  and  other  dangerous  substances; 

10.  To  suppress  gaming,  gambling-houses  and  other  disorderly  houses, 
nuisances  of  every  description,  and  all  kinds  of  vice  and  immorality; 

11.  To  prohibit  the  burial  of  the  dead  within  the  city,  except  at  such  places 
and  in  such  manner  as  the  common  council  may  determine; 

12.  To  establish  and  regulate  a  \)6\\ce  department; 

13.  To  establish  and  regulate  a  fire  department; 

14.  To  impose  penalties  for  the  violation  of  ordinances;  but  no  single  penalty 

569 


4408-4il4  POLITICAL  CODE. 

must  exceed  a  fiue  of  five  liuudi-ed  dollars,  or  iminisonment  for  ten  days,  or 
both. 

15.  To  impose  and  appropriate  fines,  penalties,  and  forfeitures  for  breaches 
of  ordinance.s; 

16.  To  make  by-laws  and  ordinances  not  repugnant  to  the  constitution  and 
the  laws  of  the  United  States  or  of  this  state; 

17.  To  require  any  land  or  building  to  be  cleansed  at  the  expense  of  the  owner 
or  occupant,  and  upon  his  default,  may  do  the  -work  and  assess  the  expense 
upon  the  laud  or  building; 

18.  To  establish  a  board  of  healtli  to  prevent  the  introduction  and  spreading 
of  disease,  or  to  ordain  and  adopt  for  the  government  of  the  city  the  "  quaran- 
tine" or  "health  regulations,"  j^rovidcd  by  this  code  for  San  Francisco  or 
Sacramento; 

19.  To  levy  and  collect  taxes,  to  lay  out,  extend,  alter  or  widen  streets  and 
alleys,  and  make  appropriations  for  any  object  of  city  expenditures; 

20.  To  erect  and  maintain  poorhouses  and  hospitals,  and  pass  such  by-laws 
and  ordinances  for  the  regulation  of  the  police  as  they  may  deem  uecessar}'. 
All  ordinances  must  be  j)ublished  in  the  manner  prescribed  by  the  common 
council. 

4409.  Street  improvements,  hoiv  made. 

Sec.  4409.  "Whenever  the  owners  of  a  major  part  of  the  property  fronting  on 
any  street  or  avenue  desire  to  improve  such  street  b}'  paving  the  same,  or  con- 
structing sewers,  or  otherwise,  the  mayor  and  council  may  make  such  improve- 
ment at  the  exjjense  of  all  the  owners  of  property  on  the  street,  which  expense 
must  be  in  proportion  to  the  number  of  feet  owned  by  each. 

4410.  To  grant  authority  to  gas  and  loaler  companies. 

Sec  4410.  The  common  council,  by  ordinance,  approved  by  the  maj'or, 
may  grant  to  any  gas  or  water  company  the  privilege  of  laying  down  pipes  in 
the  streets  and  alleys  of  such  city  for  supplying  gas  and  water  for  the  streets 
and  buildings  thereon,  for  a  term  not  exceeding  twenty-five  years. 

4411.  lieservalions  by  cities. 

Sec.  4411.  In  exercising  the  authority  mentioned  in  j)receding  section,  the 
common  council  must  reserve  the  nght  to  grant  similar  privileges  to  other 
companies,  and  require  the  laying  down  of  the  pipes  to  be  under  the  reason- 
able direction  of  the  city  authorities,  and  to  be  so  laid  as  to  do  no  injury  to  the 
proper  use  of  the  paving,  planking,  or  macadamizing  of  the  streets  and  alleys, 
nor  to  i>rivate  property  situate  thereon. 

4412.  Contract  for  gas  and  ivater. 

Skc.  4412.  The  common  council  may  contract  with  gas  and  water  companies 
for  suj^plying  the  streets  and  public  buildings  with  all  gas  and  water  necessary 
for  their  jtroper  use;  the  rates  to  be  paid  therefor  must  not  be  fixed  for  a  term 
exceeding  five  years,  and  the  city  authorities  must  reserve  the  right  to  abrogate 
such  contract  whenever  gas  or  water  is  offered  to  be  supj)lied  at  two  thirds  of 
fiur.li  fixed  conti'act  price. 

4413.  licstrictions  and  conditions  to  be  imposed. 

Sec.  4413.  In  granting  authority  to  lay  down  pipes,  and  in  contracting  for 
pas  and  water,  the  comnioji  council  must  impose  such  restrictions  and  condi- 
tions, ami  provide  for  kucIi  locations  and  construction  of  gas  and  water  works 
and  ])ipes  as  to  work  the  least  possible  public  or  private  inconvenience,  and 
j)rovide  for  enforcing  such  restrictions  and  conditions. 

4414.  Ordinance,  how  vetoed,  and  how  passed  over  veto. 

Sec.  4114.  Every  ordinance  passed  by  the  common  council  must  before  it 

570 


GOVERNMENT  OF  CITIES.  44U-4427 

becomes  effective  be  presented  to  the  mayor  for  bis  approbation.  If  lio  approve 
it,  be  must  sign  it;  if  not,  be  must  return  it,  with  his  ol)jections  in  writing,  to 
the  common  council,  who  must  cause  the  same  to  be  entcreil  upon  its  jounuils, 
and  proceed  to  reconsider  the  same.  If  after  such  consideration  two  thirds  of 
all  the  members  of  the  common  council  elect  shall  agree  to  pass  the  same,  it 
becomes  an  ordinance.  In  all  such  cases  the  votes  must  be  taken  by  yeas  and 
nays,  and  the  names  of  the  members  voting  for  and  against  tbe  same  must  be 
entered  on  the  journal.  If  any  ordinance  is  not  returned  by  the  mayor  within 
ten  days  (Sundays  excei^ted)  after  it  is  j)resented  to  him,  the  same  becomes 
effective,  as  if  the  mayor  had  signed  it. 

CHAPTEK  IV. 

JUDICIAL    POWERS. 

4424.  Police  judge — Vacancy,  how  filled. 

Sec.  4424.  The  city  police  judge  must  be  a  qualified  elector  of  the  city.  Any 
vacancy  in  the  office  of  police  judge  must  be  filled  by  an  appointee  of  the  mayor, 
made  with  the  advice  and  consent  of  the  common  council. 

4425.  Police  court  clerk. 

Sec.  4425.  The  police  judge  may  appoint  a  clerk,  with  such  compensation, 
by  way  of  salary  or  fees,  as  the  common  council  may  by  ordinance  provide. 

4426.  Criminal  jurisdiction. 

Sec.  4426.  The  police  court  has  exclusive  jurisdiction  of  the  following  public 
offenses  committed  within  the  city  boundaries. 

1.  Petit  larceny; 

2.  Assault  and  battery,  not  charged  to  have  been  committed  upon  a  public 
officer  in  the  discharge  of  his  official  duty,  or  with  intent  to  kill; 

3.  Breaches  of  the  peace,  riots,  affrays,  committing  willful  injury  to  property, 
and  all  misdemeanors  punishable  by  fine  not  exceeding  five  hundred  dollars  or  by 
imprisonment  not  exceeding  six  months,  or  by  both  such  fine  and  imprisonment; 
and, 

4.  Of  proceedings  respecting  vagrants,  lewd,  or  disorderly  persons. 

[Attention  maybe  called  to  an  amendatory  act  of  Februaiy  13,  1872;  1871-2, 
84,  as  to  the  jurisdiction  of  the  police  court  of  the  city  and  county  of  San 
Francisco,  without  any  expression  of  opinion  as  to  its  effect.] 

4427.  General  and  exclusive  jurisdiction. 

Sec.  4427.  The  police  court  also  has  exclusive  jurisdiction: 

1.  Of  all  proceedings  for  the  violation  of  any  ordinance  of  the  city,  both  civil 
and  criminal; 

2.  Of  any  action  for  the  collection  of  taxes  and  assessments  leaded  for  city 
purposes;  or  for  the  erection  or  improvement  of  any  schoolhouse  or  iniblic 
buildings;  for  the  laying  out  or  opening  or  improving  any  public  street  or  side- 
walk, lane,  alley,  bridge,  wharf,  pier,  or  dock;  or  for  tbe  purchase  of  or  the 
improvement  of  any  public  grounds;  or  for  any  and  all  public  improvements 
made  and  ordered  by  the  city  within  its  limits,  when  the  amount  of  the  tax  or 
assessments  sought  to  be  collected  against  the  person  assessed  is  less  than  three 
hundred  dollars;  but  no  lieu  upon  the  property  taxed  or  assessed  for  the  non- 
payment of  the  taxes  or  assessment  can  be  foreclosed  in  any  such  action; 

3.  Of  an  action  for  the  collection  of  money  due  to  the  city,  or  from  the  city 
to  any  person,  when  the  amount  sought  to  be  collected,  exclusive  of  interest 
and  costs,  is  less  than  three  hundred  dollars; 

4.  For  the  breach  of  any  official  bond  given  by  any  city  officer,  and  for  the 
breach  of  any  contract,  and  any  action  for  damages  in  which  the  city  is  a  party 

571 


4427-4442  POLITICAL  CODE. 

or  is  in  auj  way  interested;  aud  all  forfeited  recognizances  given  to  or  for  the 
benefit  or  in  behalf  of  the  city;  and  upon  all  bonds  given  upon  any  appeal 
talien  from  the  judgment  of  the  court  in  any  action  above  named  where  the 
amount  claimed,  exclusive  of  costs,  is  less  than  three  hundred  dollars; 

5.  For  the  recovery  of  personal  property  belonging  to  the  city,  when  the 
value  of  the  property  (exclusive  of  the  damages  for  the  taking  or  detention)  is 
less  than  three  hundred  dollars;  aud 

6.  Of  an  action  for  the  collection  of  any  license  required  by  any  ordinance  of 
the  city. 

4428.  When  justice  of  the  peace  to  act  as  police  judge. 

Sec.  4428.  In  all  cases  in  which  the  judge  is  a  party,  or  in  which  he  is  inter- 
ested, or  when  he  is  related  to  either  party  b}'  consanguinity  or  affinity  within 
the  third  degree;  and  in  case  of  his  sickness  or  inability,  the  police  judge  may 
call  in  a  justice  of  the  peace  residing  in  the  city  to  act  in  his  place  and  stead. 

4429.  Terms. 

Sec.  4429.  Police  courts  are  always  oj)en  for  the  transaction  of  business,  ex- 
cept on  non-judicial  days. 

4430.  Form  of  proceedings. 

Sec  4430.  Proceedings  in  the  police  court  in  criminal  actions  for  offenses  not 
triable  in  such  courts  must  be  had  in  conformity  with  the  provisions  of  Part  II, 
TiUe  III,  Chapter  YII,  of  the  Penal  Code.     |See  post,  13,858.] 

4431.  Trials  in  police  courts. 

Sec.  4431.  Proceedings  in  the  police  courts  in  criminal  actions  triable  in  such 
courts  are  regulated  in  Part  II,  Title  XI,  Chapter  I,  of  the  Penal  Code.  [See 
post,  14,42G.] 

4432.  Civil  practice  in  police  couris. 

Sec.  4432.  Proceedings  in  the  police  courts  in  civil  actions  are  regulated  by 
Part  II,  Title  XII,  of  the  Code  of  Civil  Procedure.     [See  post,  10,929.] 

CHAPTER  V. 

CERTAIN   STATUTES   RELATING  TO    CITIES    AND    TOWNS    AND    EXISTING    CORPORA- 
TIONS,   CONTINUED. 

4442.   Certain  statutes  continued  m  force. 

Sec.  4442.  Nothing  in  this  code  affects  any  of  the  provisions  of  "An  Act  to 
autlioiize  and  direct  the  municipal  authorities  of  the  several  cities  and  incorpor- 
ated towns  of  this  state  to  execute  certain  trusts  in  relation  to  the  town  lands 
granted  to  the  incorporated  cities  and  towns  in  this  state  by  the  act  of  congress 
entitled  an  act  for  the  relief  of  the  iidiabitunts  of  cities  and  towns  upon  the 
public  lan<ls,  ai)i)roved  March  second,  eighteen  hundred  and  sixty-seven;  ap- 
jiroved  Marcli  twenty-four,  eighteen  hundred  and  sixty-eight;"  or  of  "An  Act 
to  authorize  aud  direct  the  county  judges  of  the  several  counties  of  this  state  to 
execute  certain  trusts  in  relation  to  the  town  lands  granted  to  the  unincorpor- 
ated towns  in  this  state  l)y  the  act  of  congress  entitled  an  act  for  the  rehef  of 
the  inljabitants  of  cities  and  towns  upon  the  public-lands,  approved  March  sec- 
ond, eighteen  hundred  and  sixty-seven;  approved  March  thirtieth,  eighteen 
hundred  aud  sixty-eight;"  but  such  acts  are  continued  in  force.  [See  post, 
15,959.] 


572 


LIABILITY  FOE  MOBS  AND  RIOTS.  4452-4457 

TITLE  IV. 

liabilities  of  (founticss  and  (Titic.si  fov  ^njuvico  to  pvopcvtij 

by  IHobjs  ox  llioH, 

CHAPTER  I. 

4452.  Municipal  corporatioiifi  roi^ponnhle  for  certain  acta. 

Sec.  4452.  Every  municipal  corijoration  is  responsible  for  injuries  to  real  or 
personal  property  situate  within  its  corporate  limits  done  or  caused  by  mobs  or 
riots.  , 

4453.  Such  actions  must  he  fried,  ivhere. 

Sec.  4453.  Actions  for  damages  under  the  preceding  section  must  be  tried  in 
the  county  in  which  the  property  injured  is  situated. 

4454.  When  action  must  be  commenced. 

Sec.  4454.  All  actions  herein  provided  for  must  be  commenced  within  one 
year  after  the  act  complained  of  is  committed. 

4455.  Warrant  to  be  issued  for  payment  of  damages — Tax  therefor. 

Sec.  4455.  On  the  cei-tij&cate  of  the  presiding  officer  or  of  the  clerk  of  the 
court  in  which  the  judgment  is  rendered,  the  board  of  supervisors  of  the  county 
or  the  legislative  authority  of  the  city  must  by  ordinance  direct  and  cavise  to  be 
issued  a  warrant  for  the  payment  thereof  on  the  general  fund,  and  tlie  same 
must  be  paid  in  its  regular  order,  as  other  warrants  of  the  muuici])al  corpora- 
tion are  paid;  and  must  at  the  projjer  times  levy  and  cause  to  be  collected  a  tax 
on  the  taxable  property  of  such  municipal  coi-j:) oration  for  the  payment  of  such 
warrant  within  a  period  of  not  more  than  three  years. 

4456.  Plaintiff  not  to  recover  if  damage  resulted  from  his  own  neglect. 

Sec.  4456.  The  plaintiff  in  any  action  authorized  by  this  title  must  not 
recover  if  it  appears  upon  the  trial  that  the  damage  complained  of  was  occa- 
sioned or  in  any  manner  aided,  sanctioned,  or  permitted  by  his  carelessness  or 
negligence. 

4457.  Application  of  this  title. 

Sec.  4457.  The  provisions  of  this  title  and  chapter  are  applicable  to  cases 
where  the  levees  and  other  works  of  reclamation  of  any  district  are  injured,  or 
destroyed  by  mobs  or  riots;  and  the  actions  brought  for  damages  therefor  must 
be  prosecuted  by  the  attorney-general  of  the  state  in  the  name  of  the  people  of 
the  State  of  California;  and  the  amount  recovered  in  such  actions  must  be  paid 
to  the  treasurer  of  the  county,  who  must  place  the  same  to  the  credit  of  the 
district.  [New  section,  ajjproved  March  30,  1874;  Amendments  1873-4,  59;  took 
effect  July  6,  1874. 

[The  amendatoiy  act  of  March  30,  1874  (Amendments  1873-4,  1-60),  from 
which  most  of  the  foregoiug  amendments  and  new  sections  of  the  Political 
Code  are  taken,  contained  three  additional  sections,  relating  to  its  effect,  as 
follows:] 

Repealing  clause. 

Sec.  116.  All  provisions  of  law  inconsistent  with  the  provisions  of  this  act 
are  hereby  repealed;  but  no  rights  acquired,  or  proceedings  taken,  under  the 
provisions  repealed,  shall  be  impaired,  or  in  any  manner  affected  by  this 
repeal;  and  whenever  a  limitation  or  period  of  time  prescribed  by  such  repealed 
provisions  for  acquiring  a  right  or  barring  a  remedy,  or  for  any  other  purpose, 

573 


4457  POLITICAL  CODE. 

has  begun  to  nm  before  tliis  act  takes  effect,  and  the  same  or  any  other  limita- 
tion is  prescribed  by  this  act,  the  time  which  shall  have  run  when  this  act  takes 
effect,  shall  be  deemed  part  of  the  time  prescribed  by  this  act. 

Act,  lioio  construed. 

Sec.  117.  AVith  relation  to  the  laws  passed  at  the  present  session  of  the  legis- 
lature, this  act  must  be  construed  as  though  it  had  been  passed  on  the  first  day 
of  the  present  session,  and,  if  any  of  the  provisions  of  this  act  contravene  or 
are  inconsistent  with  the  provisions  of  any  law  passed  at  the  present  session  of 
the  le-'islature,  then  the  provisions  of  such  law  must  prevail. 

Sec  118.  This  act  shall  take  effect  on  the  first  Monday  of  July,  one  thou- 
sand ei<>-ht  hundred  and  seventy-four,  except  so  much  thereof  as  relates  to 
immi"-ration,  and  the  authority  and  duties  of  the  commissioner  of  immigration, 
and  the  enforcement  of  the  duties  and  penalties  therein  prescribed,  which  shall 
take  effect  immediately  after  its  enactment. 


574 


EFFECT  OF  CODES.  44GG-4480 


OF  THE  DEFINITION  AND  SOURCES  OF  LAW— EFFECT  AND 
PUBLICATION  OF  THE  CODES,  AND  THE  EXPKESS  RE- 
PEAL OF  STATUTES. 

Title  I.  Definition  and  Source  of  the  Law 41GG 

11.  Effect  of  the  Codes 4478 

III.  Publication  of  the  Codes,  and   Statutes   continued  in 

Force 4494 

IV.  Express  Repeal  of  Statutes 4504 


TITLE  I. 

Uefitution  anh  Sources  of  tijc  i'am. 

4466.  Definition  of  laiv. 

Sec.  44G6.  Law  is  a  solemn  expression  of  the  will  of  the  suj^reme  power  of 
the  state. 

4467.  Hoiv  expressed. 

Sec.  4467.  The  will  of  the  supreme  j)ower  is  expressed: 

1.  By  the  constitution; 

2.  By  statutes. 

4468.  Common  law,  when  rule  of  decision. 

Sec.  44G8.  The  common  law  of  England,  so  far  as  it  is  not  repugnant  to  or 
inconsistent  with  the  constitution  of  the  United  States,  or  the  constitution  or 
laws  of  this  state,  is  the  rule  of  decision  in  all  the  courts  of  this  state. 


TITLE   II, 

(gUfcct  of  tIjc  (foDcii. 

4478.  Consfrudion  of  the  codes  with  relation  to  the  laws  passed  at  the  present 

session. 
Sec  4478.  With  relation  to  the  laws  passed  at  the  present  scs.sion  of  the  leg- 
islature, the   Political  Code,  Civil   Code,  Code  of  Civil  Procedure,  and  Penal 
Code,  must  be  construed  as  though  each  had  been  passed  on  the  first  day  of  the 
present  session. 

4479.  Laivs  passed  at  present  session  prevail. 

Sec  4479.  If  the  provisions  of  any  law  passed  at  the  present  session  of  the 
legislature  contravene  or  are  inconsistent  with  the  provisions  of  either  of  the 
four  codes,  the  provisions  of  such  law  must  prevail. 

4480.  Construction  of  codes  with  relation  to  each  other. 

Sec  4480.  With  relation  to  each  other,  the  provisions  of  the  four  codes  must 
be  construed  (except  as  in  the  next  two  sections  provided)  as  though  nil  such 
codes  had  been  passed  at  the  same  moment  of  time,  and  were  parts  of  the  same 
statute. 

575 


4481-4505  POLITICAL  CODE. 

4481.  Conflicts  between  titles,  ivhich  to  prevail. 

Sec.  4481.  If  the  provisions  of  any  title  conflict  with  or  contravene  the  pro- 
visions of  another  title,  the  provisions  of  each  title  must  prevail  as  to  all  mat- 
ters and  questions  arising  out  of  the  subject-matter  of  such  title. 

4482.  Conflic(.<!  between  chapteis,  u-hich  to  prevail. 

Sec.  4482.  If  the  provisions  of  any  chai^ter  conflict  with  or  contravene  the 
pro^'isions  of  another  chapter  of  the  same  title,  the  jn'ovisions  of  each  chapter 
must  prevail  as  to  all  matters  and  questions  arising  out  of  the  subject-matter 
of  such  chapter. 

4483.  Cvnjlids  between  articles,  which  to  prevail. 

Sec.  44:83.  If  the  provisions  of  any  article  conflict  with  or  contravene  the  pro- 
visions of  another  article  of  the  same  chapter,  the  provisions  of  each  aiiicle 
must  prevail  as  to  all  matters  and  questions  arising  out  of  the  subject-matter 
of  such  article. 

4484.  Conflicting  sections  of  the  same  title,  ichich  to  prevail. 

Sec.  4484.  If  conflicting  provisions  are  found  in  different  sections  of  the  same 
chapter  or  article,  the  provisions  of  the  sections  last  in  numerical  order  must 
prevail,  unless  such  consti-uction  is  inconsistent  with  the  meaning  of  such  chap- 
ter or  article. 


TITLE  III. 


4494.   Codes  not  published  as  part  of  ihe  statutes. 

Sec.  4404.  The  codes  passed  at  this  session  of  the  legislature  must  not  be 
published  as  ]mrt  of  the  statutes  passed  at  this  session,  but  provision  must  be 
made  by  law  fur  their  ijublication. 


TITLE  IV. 

tf jrptt0i5  llcpcal  of  Staiiitw. 

4504.  Jl'jD'al  of  rcpi'alcd  statutes  not  to  imply  that  they  icere  in  force. 

Sec.  4504.  The  repeal  of  any  statute  or  part  of  a  statute  heretofore  repealed, 
must  not  be  construed  as  a  declaration,  express  or  by  implication,  that  such 
statute  or  jjart  of  a  statute  has  been  in  force  at  any  time  subsequent  to  such 
first  repeal. 

4505.  J-jXpresK  repeal  of  statutes  to  be  provided  for. 

Sec.  4505.  The  express  repeal  of  statutes  will  be  provided  for  by  a  separate 
statute,  and  such  statute,  after  its  passage,  must  be  construed  in  the  same 
manner,  and  mubt  have  like  effect  as  if  it  were  part  of  this  code. 


67G 


PRELIMINARY  PROVISIONS.  5001-5C07 


€m[  CoDc. 


An  Act  to  establish  a  civil  code. 

Approved  Maroh  21, 1872. 

TITLE  OF  THE  ACT. 

5001.  'Title  and  divisions  of  this  act. 

Section  1.  This  act  shall  be  known  as  The  Civil  Code  of  the  State  of 
Califoknu,  and  is  in  four  divisions,  as  follows: 

I.    The  First  relating  to  Persons 5025 

II.    The  Second  to  Property 5654 

III.  The  Third  to   Obligations G427 

IV.  The  Fourth  contains   General   Provisions  relating  to  the  Three 

Preceding   Divisions 8274 

PRELIMINARY   PROVISIONS. 

5002.  When  this  code  takes  effect. 

Sec.  2.  This  code  takes  effect  at  twelve  o'clock  noon,  on  the  first  day  of 
January,  eighteen  hundred  and  seventy-three. 

5003.  Not  retroactive. 

Sec.  3.  No  part  of  it  is  retroactive,  unless  expressly  so  declared. 

5004.  Rules  of  construction. 

Sec.  4.  The  rule  of  the  common  law,  that  statutes  in  derogation  thereof  are 
to  be  strictly  construed,  has  no  application  to  this  code.  The  code  establishes 
the  law  of  this  state  respecting  the  subjects  to  which  it  relates,  and  its  pro^■is- 
ions  are  to  be  liberally  construed  with  a  view  to  effect  its  objects  and  to  pro- 
mote justice. 

5005.  Provisions  similar  to  existing  laws,  how  construed. 

Sec.  5.  The  provisions  of  this  code,  so  far  as  they  are  substantially  the  same 
as  existing  statutes  or  the  common  law,  must  be  construed  as  continuations 
thereof,  and  not  as  new  enactments. 

5006.  Actions,  etc.,  not  affected. 

Sec.  6.  No  action  or  proceeding  commenced  before  this  code  takes  cflect,  and 
no  right  accrued,  is  affected  by  its  jDiovisions. 

5007.  Holidays. 

Sec  7.  Holidays,  within  the  meaning  of  this  code,  are:  every  Sunday,  the 
first  day  of  January,  the  twenty-second  day  of  February,  the  fourth  day  of 
July,  the  twenty-fifth  day  of  December,  every  day  on  which  an  election  is  held 
throughout  the  state,  and  every  day  appointed  by  the  president  of  the  United 
States  or  by  the  governor  of  this  state  for  a  public  fast,  thanksgiving  or 
holiday. 

37  577 


5008-5014  CIVIL  CODE. 

5008.  Same. 

Sec.  8.  If  the  first  of  Januaiy,  the  twenty-second  of  February,  tlie  fourth  of 
July,  or  the  twenty-fifth  of  December  falls  upon  a  Sunday,  the  Monday  following 
is  a  holiday. 

5009.  Buxiness  dat/a. 

Sec.  9.  All  other  days  than  those  mentioned  in  the  last  two  sections  are  to  be 
deemed  business  days  for  all  purposes. 

5010.  Compntation  of  time. 

Sec.  10.  The  time  in  which  any  act  provided  by  law  is  to  be  done  is  com- 
puted by  excluding  the  first  day  and  including  the  last,  unless  the  last  day  is  a 
holiday,  and  then  it  is  also  excluded. 

5011.  Certain  acts  not  to  be  done  on  holidays. 

Sec.  11.  "Whenever  any  act  of  a  secular  nature,  other  than  a  work  of  neces- 
sity or  mercy,  is  appointed  by  law  or  contract  to  be  performed  upon  a  particular 
day,  which  day  falls  upon  a  holiday,  it  may  be  performed  uj^on  the  next  busi- 
ness day,  with  the  same  efiect  as  if  it  had  been  performed  upon  the  day 
appointed. 

5012.  Joint  authority  construed. 

Sec.  12.  Words  giving  a  joint  authority  to  three  or  more  public  ofiicers  or 
other  persons  are  construed  as  giving  such  authority  to  a  majority  of  them, 
unless  it  is  otherwise  expressed  in  the  act  giving  the  authority. 

5013.  M'ords  and  jjhrases,  how  construed. 

Sec.  13.  "Words  and  phrases  are  construed  according  to  the  context  and  the 
approved  usage  of  the  language;  but  technical  words  and  phrases,  and  such 
others  as  may  have  acquired  a  peculiar  and  appropriate  meaning  in  law,  or  are 
defined  in  the  succeeding  section,  are  to  be  construed  according  to  such  pecul- 
iar and  appropriate  meaning  or  definition. 

5014.  Certain  terms  defined. 

Sec.  14.  "Words  used  in  this  code  in  the  present  tense  include  the  future  as 
well  as  the  jiresent;  words  used  in  the  masculine  gender  include  the  feminine 
and  neuter;  the  singular  number  includes  the  plural  and  the  plural  the  singu- 
lar; the  word  person  includes  a  corporation  as  well  as  a  natural  person;  writing 
includes  printing;  oath  includes  afiirmation  or  declaration;  and  every  mode  of 
oral  statement  under  oath  or  affirmation  is  embraced  by  the  term  "testify," 
and  every  written  one  in  the  term  "  depose;"  signature  or  subscrij^tion  includes 
mark,  when  the  person  cannot  write,  his  name  being  written  near  it,  and  writ- 
ten by  a  person  who  writes  his  own  name  as  a  witness.  The  following  Avords 
alsu  have  in  this  code  the  signification  attached  to  them  in  this  section,  unless 
otherwise  apparent  from  the  context: 

Propf-rty. 

1.  Tlie  word  "  property"  includes  property,  real  and  personal. 
Real  jn'operty. 

2.  The  words  "real  property "  are  coextensive  Avith  lands,  tenements,  and 
Lereditaments. 

Pemonal  property.  • 

3.  The  words  "personal  property"  include  money,  goods,  chattels,  things  in 
actif^n,  and  evidences  of  debt. 

Montti. 

4.  The  word  "month"  means  a  calendar  montli,  unless  otherwise  expressed, 

578 


PRELmiNAKY  PROVISIONS. 


5014-5021 


Will 

5.  The  -word  "-will"  includes  codicils.  [Ammd merit,  approved  Marcli  30, 
1874;  Amendments  1873-4,  181;  took  effect  July  1,  1874.^'> 

[Secs.  15,  16  and  17'"^  were  repealed  bv  act  approved  March  30, 1874;  Amend- 
ments 1873-4,  182;  took  effect  July  1,  1874.] 

5018.  Notice,  actual  and  constructive. 
Sec.  18.  Notice  is: 

1.  Actual — which  consists  in  express  information  of  a  fact;  or, 

2.  Constructive — which  is  imputed  by  law. 

5019.  Constructive  notice. 

Sec.  19.  Every  person  who  has  actual  notice  of  circumstances  sufficient  to 
put  a  prudent  man  upon  inquiry  as  to  a  particular  fact,  has  constructive  notice 
of  the  fact  itself  in  all  cases  in  which,  by  prosecuting  such  inquiry,  he  might 
have  learned  such  fact.  [Amendment,  approved  March  30,  1874;  Amendments 
1873-4,  182;  took  eff'ect  July  1,  1874.^'^ 

5020.  Effect  of  repeal. 

Sec.  20.  No  statute,  law,  or  rule  is  continued  in  force  because  it  is  consistent 
with  the  provisions  of  this  code  on  the  same  subject;  but  in  all  cases  provided 
for  by  this  code,  all  statutes,  laws,  and  rules  heretofore  in  force  in  this  state, 
whether  consistent  or  not  with  the  provisions  of  this  code,  unless  expressly 
continued  in  force  by  it,  are  repealed  or  abrogated.  This  repeal  or  abrogation 
does  not  revive  any  former  law  heretofore  repealed,  nor  does  it  aflfeet  any  right 
ali'eady  existing  or  accrued,  or  any  action  or  proceeding  already  taken,  except 
as  in  this  code  provided. 

5021.  This  act,  how  cited. 

Sec.  21.  This  act,  whenever  cited,  enumerated,  referred  to,  or  amended,  may 
be  designated  simply  as  "  The  Civil  Code,"  adding,  when  necessary,  the  num- 
ber of  the  section. 


(a)  The  original  section  consisted  of  twenty-nine 
subdivisions,  and  is  omit:ed  on  account  of  its  length. 
In  addition  to  the  terms  defined  in  the  amendment,  it 
gave,  or  attempted  to  fiive,  definitions  of  -'paper," 
"land,"  "compound  interest,"  "year,"  "a.  d.," 
"  Btute,"  "  third  persons,"  "  persons  of  unsound  mind," 
"children,"  "  several,"  "  writ,"  "prociss,"  "  debtor," 
"usual,"  "customary,"  "usage,"  "verdict,"  "  value" 
and  "  seal." 

(b)  Repealed  sections: 

Sec.  l:j.  Good  faith  consists  in  an  honest  intention 
to  abstain  from  taking  any  unconscientious  advantage 
of  another,  even  through  the  forms  or  technicalities  of 
law,  together  with  an  absence  of  all  information  or 
belief  of  facts  which  would  render  the  transaction  un- 
conscientious. 

Sec.  lij.  There  are  three  degrees  of  care  and  dili- 
gence: 1.  Slight,  which  is  such  as  persons  of  ordinary 


prudence  usually  exercise  about  their  own  affairs  of 
slight  importance;  2.  Ordinary,  which  is  such  as  per- 
sons of  ordiuHry  prudence  usu:illy  exercise  about  their 
own  affiirsof  ordinary  importance;  i.  Great,  wliich  is 
such  as  per.sous  of  ordinary  prudence  usually  exercise 
about  their  own  aff-iirs  of  great  importance. 

Sec.  17.  There  are  three  degrees  of  negligence:  1. 
Slight,  which  consi-sts  in  the  want  of  great  care  and 
diligence;  2.  Ordinary,  which  consists  in  the  want  of 
ordinary  care  and  diligence;  3.  Gross,  which  consists 
in  the  want  of  slight  care  and  diligence. 

(c)   Original  section: 

Sec.  19.  Every  person  who  has  actual  notice  of  cir- 
cumstances surti  ient  to  put  a  prudent  man  upon  In- 
quiry as  to  a  p  irticular  fact,  and  who  omits  to  malce 
such  inquiry  with  reasonable  diligence,  has  construc- 
tive notice  of  the  fact  itself. 


579 


5025-5034  CH'IL  CODE. 


DIVISION  FIRST. 

Part  I.   PERSONS 5025 

II.  PERSONAL  RIGHTS 5043 

III.  PERSONAL  RELATIONS 5055 

IV.  CORPORATIONS 5283 


Fi^IlT  I. 

PEKSONS. 

5025.  Minov!^,  xcho  are. 
Sec.  25.  Minors  are: 

1.  Males  under  twenty-one  years  of  age; 

2.  Eemales  under  eighteen  years  of  age. 

5026.  Periods  of  minorihj,  how  calculated. 

Sec.  20).  The  periods  specified  in  the  preceding  section  must  be  calculated 
from  the  first  minute  of  the  day  on  which  persons  are  born  to  the  same  minute 
of  the  con-esponding  day  completing  the  period  of  minority. 

5027.  Adults,  u'ho  are. 

Sec  27.  All  other  persons  are  adults. 

[Sec.  28'*^  was  repealed  by  act  approved  March  30, 1874;  Amendments  1873-4, 
182;  took  effect  July  1,  1874.] 

5029.    Utiborn  child. 

Sec  29.  A  child  conceived,  but  not  yet  born,  is  to  be  deemed  an  existing 
person,  so  far  as  may  be  necessary  for  its  interests  in  the  event  of  its  subse- 
quent birth. 

[Secs.  30  and  31""  were  repealed  by  act  approved  March  30,  1874;  Amend- 
ments 1873-4,  182;  took  eflect  July  1,"^  1874.] 

5032.  Custodij  of  minors. 

Sec.  32.  The  custody  of  minors  and  persons  of  unsound  mind  is  regulated 
by  Part  III  of  this  Division. 

5033.  Elinor,  disabilities  of. 

Sec.  33.  A  minor  cannot  give  a  delegation  of  power,  nor,  under  the  age  of 
eighteen,  make  a  contract  relating  to  real  property,  or  any  interest  therein,  or 
relating  to  any  personal  property  not  in  his  immediate  possession  or  control. 
[Amendment,  approved  March  30, 1874;  Amendments  1873-4,  182;  took  effect  July 
1,  1874.''' 

5034.  Minor,  rights  of. 

Sec  34.  A  minor  may  make  any  other  contract  than  as  above  specified,  in  the 
same  manner  as  an  jidult,  subject  only  to  his  power  of  disaffirmance  under  the 
provisions  of  tliis  title,  and  subject  to  the  provisions  of  the  titles  on  marriage, 
and  on  master  an<l  sf-rvant.  [Amendment,  appjroved  March  30,  1874;  Amendments 
1873-4,  183;  took  effect  July  \,  1874.*"' 

(a)  RfT«-ale<l  wrtlcn:  alt<T  their  rights  In  relation  to  contracts  made  in  such 

Hk(-.  W.  The  iimrrinKe  of  iiiinonicliaugcB  their  status  state  or  foreign  country, 

froriiiiiinorh  t..ii<liilth.  ,c)  Original  section: 

(fc)  1{<-1M«1<(1  (.i-(ti'.ij(;:  Sec.  3;t.  A  minor  cannot  give  a  delegation  of  power. 

ftKf.  :«J.  I'.wnh  iiiH.l.- adults  by  the  laws  of  a  state  {d)  Original  wction: 

or  fonlgn  country  in  whi.'h  they  were  domiciled,  are  Si:c.  3t.  A  minor  mav  make  a  conveyance  or  other 

adultK  iu  this  state  when  they  become  domiciled  here-  contract  in  th<-  name  manner  as  any  other  person,  sub- 

*"•  jei't  only  to  his  power  of  disaffirmance  under  the  pro- 

Skc.  31.   Minors  by   the   laws  of  another  state   or  visions  of  this  title,  and  to  the  provisionB  of  the  title 

for.ign  coiintrj-.  wh<rein  tli.y  have  been  <lr)mirileil,  on  marriage, 
•re  not  deemed  adults  under  this  code  so  as  to  affect  or 

580 


PERSONS.  5035-5C41 

5035.  Ilinor,  disaffirmance  of  contract. 

Sec.  35.  In  all  cases  other  than  those  specified  in  sections  30  and  37,  the  con- 
tract of  a  minor,  if  made  whilst  he  is  under  the  age  of  oif^'htcen,  may  be  dis- 
affirmed by  the  minor  himself,  either  before  his  majority  or  witliin  a  reasonable 
time  afterwards;  or,  in  case  of  his  death  within  that  period,  by  his  heirs  or  i)or- 
sonal  reiDresentatives;  and  if  the  contract  be  made  by  the  minor  whilst  he  is 
over  the  age  of  eighteen,  it  may  be  disaffirmed  in  like  manner  upon  restoring 
the  consideration  to  the  party  from  Avhom  it  was  received,  or  ])aying  its  ('(niiv- 
alent.  [Amendment,  approved  March  30,  1874;  Amendments  1873-4,  183;  tuuk 
effect  July  1,  1874/^' 

5036.  Cannot  disaffirm  contract  for  necessaries. 

Sec.  36.  A  minor  cannot  disaffirm  a  contract,  othei'wise  valid,  to  pay  the 
reasonable  value  of  things  necessary  for  his  sujiport,  or  that  of  his  family, 
entered  into  by  him  when  not  under  the  care  of  a  parent  or  guardian  able  to 
provide  for  him  or  them.  [Amendment,  approved  March  30,  1874;  Amendments 
1873-4,  183;  took  effect  July  1,  1874.^''> 

5037.  No  certain  obligations. 

Sec.  37.  A  minor  cannot  disaffirm  an  obligation,  otherwise  valid,  entered  into 
by  him  under  the  express  authority  or  direction  of  a  statute. 

5038.  Persons  without  understanding,  disabilities  and  liabilities  of. 

Sec.  38.  A  person  entirely  without  understanding  has  no  power  to  make  a 
contract  of  any  kind,  but  he  is  liable  for  the  reasonable  value  of  things  fur- 
nished to  him  necessary  for  his  support  or  the  support  of  his  family.  [Aynend- 
ment,  approved  March  30,  1874;  Amendments  1873-4,  183;  took  effect  July  1, 
1874.^^' 

5039.  Contracts  of  insane  subject  to  rescission. 

Sec.  39.  A  conveyance  or  other  contract  of  a  person  of  unsound  mind,  but 
not  entirely  without  understanding,  made  before  his  incapacity  has  been  judi- 
cially determined,  is  subject  to  rescission,  as  i^rovided  in  the  chapter  on  rescis- 
-: r  i.1.: j .  ^r^ j^^^t   ^^r^^rrmp.d  March  dO,  1874:;  Amendments  ISlS-i, 

§  40.     After  his  incapacity  has  been  judicially  determined, 

a  person  of  unsound  mind  can  make  no  conveyance  or  other  adjudged. 

contract,  nor  delegate  any  power,  or  waive  any'riaht,  until  his  i    ,          •       ■,           „     „„  ^r  „„ 

restoration  to  capacity.     But  a    Certificate   from    the   Medical  '  determined,  a  person  of  un- 

Superinteudent  or  Resident  Physician  of  the   Insane   Asylum  tract,  nor  delegate  anv  power, 

sLwr/"'?  ^.T"""  ™^y '^^^^  ^f -^  committed,  showing'that  ^^.^t     is  judiciallv  determined. 

such  person  had  been  discharged  therefrom  cured  and  restored  *^  ...    I,  .     '. 

to  reason,  shall   establish  the  presumption  of  legal  capacity  in  '  a  will,  though  his  restoration 

such  person  from  the  time  of  such  discharge.     Fin  effect  May 

29,  1878.] 

5041.  Minors  liable  for  xorongs,  but  not  uauicjur  cJcemjMry  damages. 

Sec  41.  A  minor,  or  person  of  unsound  mind,  of  whatever  degree,  is  civilly 

liable  for  a  wrong  done  by  him,  but  is  not  liable  in  exemplary  damages  unless 

at  the  time  of  the  act  he  was  capable  of  kno^Aing  that  it  was  wrongful. 

(a)  Original  gection:  into  by  him  when  not  under  the  care  of  a  parent  or 

Sec.  35.  lu  aU  cases  other  than  those  specifled  by  guardian  able  to  provide  lorhiui. 

sections  36  and  37,  the  contract  of  a  minor  may,  upon  (c)   Original  section:                           »  „„!„...=*.„  n,.„ 

restoring  the  consideration  to  the  party  from  whom  it  Sec.  38.  A  person  entirely  without  understanaing 

was  received,  be  disaffirmed  by  the   minor  hiuiBclf.  has   no  power  to  contract,   except  in  the  case   mcu- 

either  before  his  majority  or  within  a  reasonabU-  time  tioned  in  section  30,  unless  expressly  authorized  by 

afterward,  or,  in  case  of  his  death  within  that  period,  statute. 

by  his  heirs  or  personal  representatives.  (^0  Original  section:                             u,,*  „„»  „„«..^i„ 

lb)  Original  section-  Sec.  39.  A  person  of  unsound  mind,  but  not  entirely 

Sec.  36    A  minor,  or  a  person  of  unsound  mind  of  without  understanding.  ."'">; '""'^^'.^j'^.^^'^";:,?"^ 

whatever  degree,    cannot  disaffirm  a  contract,   otlicr-  «*'»"• '^'"t"^*  1»:'->"\1^''^ '"'^I'.^'-^'^^t,'^:.^'^!^^^^^^ 

wise  valid,  to  pay  the  reasonable  value  of  things  neccs-  determined,  subject  to  rescission,  aa  provided  m  the 

sary  for  his  support,  or  for  that  of  his  family,  entered  chapter  on  rescisBiou. 

581 


5042-5047  CIVIL  CODE. 

5042.  Jlliujfs  maij  enforce  their  rights. 

Sec.  42.  A  minor  may  enforce  his  rights  by  civil  action,  or  other  legal  pro- 
ceedings, in  the  same  manner  as  a  person  of  full  age,  except  that  a  guardian 
must  conduct  the  same. 


P^RT  II. 

PERSONAL  EIGHTS. 

5043.  General  peisonal  rights. 

Sec  43.  Besides  the  personal  rights  mentioned  or  recognized  in  the  Political 
Code,  every  person  has,  subject  to  the  qualifications  and  restrictions  provided 
by  law,  the  right  of  protection  from  bodily  restraint  or  harm,  from  jjersonal 
insult,  from  defamation,  and  from  injury  to  his  personal  relations. 

5044.  Defamation,  what. 

Sec.  44.  Defamation  is  effected  by: 

1.  Libel; 

2.  Slander. 

5045.  Libel,  what. 

Sec.  45.  Libel  is  a  false  and  unprivileged  publication  by  writing,  printing, 
|)icture,  effigy,  or  other  fixed  representation  to  the  eye,  which  exposes  any  per- 
son to  hatred,  contempt,  ridicule,  or  obloquy,  or  which  causes  him  to  be 
slumned  or  avoided,  or  which  has  a  tendency  to  injure  him  in  his  occupation. 

5046.  Slander,  xohat. 

Sec.  4G.  Slander  is  a  false  and  unprivileged  jDublication  other  than  libel, 
which : 

1.  Charges  an}'  person  with  crime,  or  with  havdng  been  indicted,  convicted, 
or  punished  for  crime; 

2.  Imputes  in  him  the  present  existence  of  an  infectious,  contagious,  or  loath- 
some disease; 

3.  Tends  directly  to  injure  him  in  resjoect  to  his  office,  profession,  trade,  or 
business,  either  by  imputing  to  him  general  disqualification  in  those  respects 
which  the  office  or  other  occupation  j)eculiar]y  requires,  or  by  imputing  some- 
thing with  reference  to  his  office,  profession,  trade,  or  business  that  has  a 
natural  tendency  to  lessen  its  profit; 

4.  Imputes  to  him  impotence  or  a  want  of  chastity;  or, 

5.  "Wljich,  by  natural  consequence,  causes  actual  damage. 

5047.  W'ltnl  piihlicalions  are  privileged. 

Sec.  47.  A  privileged  publication  is  one  made: 

1.  In  the  proper  discharge  of  an  official  duty; 

2.  In  any  legislative  or  judicial  proceeding,  or  in  any  other  official  proceed- 
ing authorized  by  hiw; 

3.  In  a  communication,  without  malice,  to  a  person  interested  therein,  by  one 
wlio  is  also  interosterl,  (^r  by  one  who  stands  in  such  a  relation  to  the  person 
interested  as  to  affurd  a  reasonable  ground  for  supposing  the  motive  for  the 
(oiMjiiunication  innocent,  or  who  is  requested  by  tbo  person  interested  to  give 
the  information; 

582 


MARRIAGE.  5047-5050 

4.  By  a  fair  and  true  report,  without  malice,  of  a  judicial,  legislative,  or 
other  public  official  proceeding,  or  of  anything  said  in  the  course  thereof. 
[Aineridment,  approved  March  30,  1874;  Amendments  1873-4,  184;  loo/c  e(/'cct 
July  1,  1874.'^> 

5048.  Malice  not  inferred. 

Sec.  48.  In  the  cases  provided  for  in  subdivisions  3  and  4  of  the  preceding 
section,  malice  is  not  inferred  from  the  communication  or  publication. 

5049.  Protection  to  personal  relations. 

Sec.  49.  The  rights  of  personal  relation  forbid: 

1.  The  abduction  of  a  husband  from  his  wife,  or  of  a  parent  from  his  child; 

2.  The  abduction  or  enticement  of  a  wife  from  her  husband,  of  a  child  from 
a  parent  or  from  a  guardian  entitled  to  its  custody,  or  of  a  servant  from  his 
master; 

3.  The  seduction  of  a  wife,  daughter,  orphan  sister,  or  servant; 

4.  Any  injury  to  a  ^ervant  which  affects  his  ability  to  serve  his  master. 

5050.  Right  to  use  force. 

Sec.  50.  Any  necessary  force  may  be  used  to  protect  from  wrongful  injuiy 
the  person  or  in'operty  of  oneself,  or  of  a  wife,  husband,  child,  parent,  or  other 
relative,  or  member  of  one's  family,  or  of  a  ward,  servant,  master,  or  guest, 
[Aynendmeiit,  approved  March  30,  1874;  Amendments  1873-4,  184;  took  effect 
July  1,  1874."'> 


I>ART    III. 

PEPtSONAL  EELATIONS. 

Title  I.  Marriage 5055 

II.  Parent  and  Child 5193 

III.  Guardian   and  Ward 5236 

IV.  Master  and  Servant 52G4 


TITLE   I. 

Ittarriaoc. 

Chapter    I.  The  Co>:tract  of  Marriage 5055 

II.  Divorce 5082 

III.  Husband  and  Wife 515o 

CHAPTEE   I. 

THE  CONTRACT   OF   MARRIAGE. 

Abticle   I.  Validity  of  Maeriage ^"^^ 

II.  Authentication  of  Marriage 'j'^''° 

III.  JoDiciAii  Determination  of  Void  Maeeiages i>ObO 

(a)  The  original  section  differed  in  the  second  and  h  reasonable  ground    for    Eupposing  his  nWivc   in- 

third  subdivisions,  which  were  as  follows:  nocent,  or  who  was  requested  by  hini  to  gi>e  tUe  In- 

2.  In  testifying  as  a  witness  in  any  proceeding  au-  formation.  ,  ,.  .  .  .,*,,„  „.  ,„i„  ..  i„  .  t,o»^ 
thorized  by  law  to  a  matter  pertinent  and  material,  or  The  fcnirth  subdivision  had  the  fjords  ,.'n  a  news- 
in  reply  to  a  question  allowed  bv  the  tribunal.  paper  "between  the  wonis  "  report     and     ^;  <bout 

3.  In  a  communication,  without  malice,  to  a  person  (6)  The  original  section  >n'^»7;l 'f ."/.'"; »^".^ 
interested  therein,  bv  one  who  was  also  interested,  or  one's  family  or  of  had  the  words  to  the  third  de- 
who  stood  in  such  a  relation  to  the  former  as  to  afford  gree."    It  did  not  have  the  word     guest. 

583 


5055-50G2  CFV^IL  CODE. 

AETICLE  I. 

VAX.rDITy    OF    MARRIAGE. 

5055.  What  constitutes  marriage. 

Sec.  55.  Maniage  is  a  personal  relation  arising-  out  of  a  civil  contract,  to 
which  the  consent  of  parties  capable  of  making  it  is  necessary.  Consent  alone 
will  not  constitute  marriage;  it  must  he  followed  by  a  solemnization,  or  by  a 
mutual  assumption  of  marital  rights,  duties,  or  obligations. 

5056.  Mi)Lors  capable  of  contracting  marriage. 

Sec.  5G.  Any  unmamed  male  of  the  age  of  eighteen  years  or  upwards,  and 
any  unmarried  female  of  the  age  of  fifteen  years  or  upwards,  and  not  other- 
wise disqualified,  ai-e  capable  of  consenting  to  and  consummating  marriage. 

5057.  Marriage,  hoic  manifested  and  proved. 

Sec.  57.  Consent  to  and  subsequent  consummation  of  marriage  may  be 
manifested  in  any  form,  and  may  be  jDroved  under  the  same  general  rules  of 
evidence  as  facts  in  other  cases. 

5058.  Marriage,  ichen  voidable. 

Sec.  58,  If  either  party  to  a  marriage  be  incapable  from  physical  causes  of 
enteiing  into  the  marriage  state,  or  if  the  consent  of  either  be  obtained  by  fraud 
or  force,  the  mamage  is  voidable.  [Amendment,  approved  March  30,  1874; 
Amendments  1873-4,  185;  took  effect  July  1,  1874.^''^ 

5059.  Incompetency  of  piarties  to. 

Sec  59.  Marriages  between  parents  and  children,  ancestors  and  descendants 
of  every  degree,  and  between  brothers  and  sisters  of  the  half  as  well  as  the 
whole  blood,  and  between  uncles  and  nieces  or  aunts  and  nephews,  are  incest- 
uous, and  void  from  the  beginning,  whether  the  relationship  is  legitimate  or 
illegitimate. 

5060.  Of  wliites  and  negroes  or  mulaftoes,  void. 

Sec.  go.  All  marriages  of  white  persons  with  negroes  or  mulattoes  are  illegal 
and  void, 

5061.  Second  marriage,  ivhen  illegal  and  void. 

Sec.  61.  A  subsequent  marriage  contracted  by  any  person  during  the  life  of  a 
former  husband  or  wife  of  such  person,  with  any  person  other  than  such  former 
husband  or  wife,  is  illegal  and  void  from  the  beginning,  unless: 

1.  The  former  nian-iage  has  been  annulled  or  dissolved; 

2.  Unless  such  former  husband  or  wife  Avas  absent,  and  not  known  to  such 
person  to  be  living  for  the  space  of  five  successive  years  immediately  preceding 
such  subsequent  marriage,  or  was  generally  reputed  and  was  believed  by  such 
pei-sou  to  be  dead  at  the  time  such  subsequent  marriage  was  contracted;  in 
either  of  which  cases  the  subsequent  marriage  is  valid  until  its  nullity  is  ad- 
judged by  a  competent  tribunal.  [Amendment,  approved  March  30, 1874;  Amend- 
ments 1873-4,  185;  took  eff'ect  July  1,  1874.^''> 

5062.  Tieleaae from  marriage  contract. 

Sec.  (j2.  Neither  party  to  a  contract  to  marry  is  bound  by  a  promise  made  in 
ignorance  of  the  other's  want  of  personal  chastity,  and  either  is  released  there- 
from by  unchaste  conduct  on  the  part  of  the  other,  unless  both  parties  parti- 
cipate therein,  [Amendment,  approved  March  30,  1874;  Amendments  1873-4, 
185;  took  rffect  July  1,  1874.*^' 

(a)  OrlKlrial  M-rtion;  dlvinlon,  ■whioh,  after  the  words  "preoeflinf;  snch  Bub- 
tir.c.  :m.  If  <  itlKT  pirty  to  a  marrlaKr'  1b  Incapable  of     Bcqiicut  iiiiuTiiige,"  nailB  aB  follows:  "  iu  wiiich  ciise 

conwiit,  for  w;iiit  of  b(4<-  or  uii-I<n*t!in<liii({;  or.  from  the  BiibBcqui  iit  marriage  is  void  only  from  the  time  its 

phyblial  ■iMiwH,  of  entering  into  the  iiiarrlHge  state;  or  millity  ik  iKl.jiulgcd  by  a  coiiipeteiit  tribinial." 

If  mrh  lonnent  iH  obtained  by  fraud  or  force,  the  mar-  (c)   The  original  r<  rtion  did  not  have  the  words  "  un- 

rlage  Its  voidable.  lesB  both  parties  participate  therein." 

(b)  The  original  section  differed  in  the  second  sub- 

584 


MARRIAGE.  60C3-5072 

5063.  Marriages  contracted  without  the  state. 

Sec.  G3.  All  marriages  contracted  without  tliis  state,  which  would  be  valid 
by  the  laws  of  the  country  in  which  the  same  were  contracted,  arc  valid  in  this 
state. 

ARTICLE  II. 

AUTHENTICATION    OF   MARRUGE. 

5068.  Marriage,  how  solemnized. 

Sec.  G8.  Marriage  must  be  licensed,  solemnized,  authenticated,  and  recorded 
as  provided  in  this  article;  but  non-compliance  with  its  provisions  does  not 
invalidate  any  lawful  marriage. 

5069.  Marriage  license,  requisites  of. 

Sec.  G9.  All  persons  about  to  be  joined  in  marriage  must  first  obtain  a  license 
therefor  from  the  clerk  of  the  county  court  of  the  county  in  which  the  marriage 
is  to  be  celebrated,  showing: 

1.  The  identity  of  the  parties; 

2.  Their  real  and  full  names  and  places  of  residence; 

3.  Their  ages; 

4.  If  the  male  be  under  the  age  of  twenty-one,  or  the  female  under  the  age  of 
eighteen  years,  the  consent  of  the  father,  mother,  or  guardian,  or  of  one  having 
the  charge  of  such  person,  if  any  such  be  given;  or  that  such  non-aged  person 
has  been  previously,  but  is  not  at  the  time,  married.  For  the  purpose  of  ascer- 
taining these  facts,  the  clerk  is  authorized  to  examine  parties  and  witnesses  on 
oath,  and  to  receive  affidavits,  and  he  must  state  such  facts  in  the  license.  If 
the  male  be  under  the  age  of  twentj'-one  years,  or  the  female  be  under  the  age 
of  eighteen,  and  such  person  has  not  been  previously  married,  no  license  shall 
be  issued  by  the  clerk,  unless  the  consent  in  waiting  of  the  parents  of  the  person 
under  age,  or  of  one  of  such  jDarents,  or  of  his  or  her  g-uardian,  or  of  one  having 
charge  of  such  person,  be  presented  to  him;  and  such  consent  shall  be  filed  by 
the  clerk.  [Amendment,  approved  March  30, 1874;  Amendments  1873-4, 185;  look 
effect  July  1,  1874.^"" 

5070.  By  whom  solemnized. 

Sec.  70.  Mamage  may  be  solemnized  by  either  a  justice  of  the  supreme  court, 
district  or  county  judge,  justice  of  the  peace,  mayor,  priest,  or  minister  of  the 
gospel  of  any  denomination. 

5071.  No  particular  form  of  solemnization. 

Sec.  71.  No  particular  form  for  the  ceremony  of  marriage  is  requu-ed,  but  the 
parties  must  declare,  in  the  presence  of  the  person  solemnizing  the  mai-riage, 
that  they  take  each  other  as  husband  and  wife. 

5072.  Requisites  on  solemnization  of  marriage. 

Sec  72.  The  person  solemnizing  a  mamage  must  first  require  the  presen- 
tation of  the  marriage  license;  and  if  he  has  any  reason  to  doubt  the  correctness 
of  its  statement  of  facts,  he  must  first  satisfy  himself  of  its  correctness,  and  for 
that  purpose  he  may  administer  oaths  and  examine  the  parties  and  witnesses  in 
like  manner  as  the  county  clerk  does  before  issuing  the  license.  [Amendment, 
approved  March  30,  1874;  Amendments  1873-4,  186;  took  effect  July  1,  1874.*"' 

(a)  The  original  section  had  the  foHowing  third  sub-  first  require  the  presentation  of  the  niarrinRe  license, 

division:  "3.  That  they  are  of  sufficient  age  to  be  capa-  and  satisfy  himself  that  it  substantially  couforniB  to 

ble  of  contracting  marriage."  section  69,  and  that  the  facts  set  forth  in  it  art-  time. 

In  the  fourth  subdivision  it  did  not  have  the  words  For  this  purpose  he  may  rely  upon  the  license  or  may 

"  or  of  one  having  the  charge  of  such  person,"  nor  the  administer  o-.ths  and  examine  the  parties  and  wituesseB 

last  sentence  commencing  ^vith  the  words, "  If  the  male  in  like  manner  as  the  county  clerk  does  before  iSBUing 

be  under  the  age  of  twenty-one  years."  the  license. 

(6)   Original  section: 

Sec.  72.  The  person  solemnizing  a  marriage  must 

585 


5073-5080  CrV^IL  CODE. 

5073.  Certificate  of  marriage. 

Sec.  73.  The  person  solemnizing  a  marriage  must  make,  sign,  and  indorse 
upon,  or  attach  to,  the  license,  a  certificate,  showing: 

1.  The  fact,  time,  and  place  of  .solemnization;  and 

2.  The  names  and  places  of  residence  of  one  or  more  witnesses  to  the  cere- 
mony. [Amendment ,  approved  JIarch  30,  1874;  Amendments  1873-4,  187;  took 
effect  Juhj  I,  1874.^') 

5074.  Certificate  to  parties  and  recorder. 

Sec.  74.  He  must,  at  the  request  of,  and  for  either  party,  make  a  certified 
copy  of  the  license  and  certificate,  and  file  the  originals  with  the  county 
recorder  within  thirty  days  after  the  marriage. 

5075.  Declaration  of  marriage,  hoiv  made. 

Sec.  75.  Persons  married  without  the  solemnization  provided  for  in  section 
70  must  jointly  make  a  declaration  of  marriage,  substantially  showing: 

1.  The  names,  ages,  and  residence  of  the  i^arties; 

2.  The  fact  of  marriage; 

3.  The  time  of  marriage; 

4.  That  the  marriage  has  not  been  solemnized. 

5076.  l)edaration  of  marriage,  ichat  to  contain. 

Sec.  76.  If  no  record  of  the  solemnization  of  a  marriage  heretofore  contracted 
be  known  to  exist,  the  jDarties  may  join  in  a  written  declaration  of  such  mar- 
riage, substantially  showing: 

1.  The  names,  ages,  and  residences  of  the  parties; 

2.  The  fact  of  marriage; 

3.  That  no  record  of  such  marriage  is  known  to  exist.  Such  declaration 
must  be  subscribed  by  the  parties  and  attested  by  at  least  three  witnesses. 
[Amendment,  approved  March  30,  1874;  Amendments  1873-4,  187;  took  efi^ect 
July  1,  1874.'''> 

5077.  To  he  acknowledged  and  recorded. 

Sec.  77.  Declarations  of  marriage  must  be  acknowledged  and  recorded  in  like 
.manner  as  grants  of  real  property. 

5078.  Action  between  the  parties  to  determine  validity. 

Sec.  78.  If  either  party  to  any  marriage  denies  the  same,  or  refuses  to  join  in 
a  declaration  thereof,  the  other  may  proceed,  by  action  in  the  district  court,  to 

g  79.  Wlu-n  unmarried  persons,  not  minors,  have  been  livin-  blared. 

toge  her  us  „mn  an.l  wife,  they  may,  without  a  license,  be  ma." 
ned  by  any  eh-rpyman.  A  certificate  of  such  marriage  must, 
by  the  clcpfryn.an,  be  made  and  deHvered  to  the  partieJ^  anri  re- 
corded upon  the  records  of  the  church  of  which  the  cler-^vnian 
iH  a  representative.     Xo  other  record  need  be  made,     fin  effect  LEKIAGES. 

I'-bruary  «,  1H78.]  ^  ' 

I  iniR  arncie,  as  an  entirety,  was  acuicci  lo  tne  v.iwl  Code  by  act  of  March  15, 
187G;  Amendments  1875-G,  09;  took  efi'ect  from  passage.] 

5080.  Judicial  declaration  of  incestuous  or  void  marriage. 

Sec.  80.  Either  party  to  an  incestuous  or  void  marriage  may  proceed  by  action 
in  thf  district  court  to  have  the  same  so  declared.  [New  section,  approved  Ilarch 
15,  1870;  Amendments  1875-G,  GO;  took  effect  from  passage. 

♦  h'.^'i  "'^i'''"''''''!'',-,'"''.!'''!;''!"' *!"■""  ""l""^''"*''"''-*^®  ''''  The  origiiiKl   Bortion   did  not   liavo   the   wordH 

Tn,n»?.,HTH''«    V      r'V;  ""''*";' '•;^';'''l'\''^''''•  "'"''''''-  "  h<Tftofori-  c.ntra.tf.l,"  U(,r  the  last  B.ntence  com- 

f^  .?« L?r.^  VJ"  ^    ,  ""  ^""".V.-  1'  *■  ^  '"/  '";  '"■"'■''■^«  "'«  mencing  with  the  words.  "  Such  declaration  must  be 

IB'  iH  htat<ii  to  »«•  tnip,  and  that  upon  Aw  iiifjuirj-  there  subscribed." 
•PI>tarB  to  be  no  Ug«U  luipedlmeiit  to  the  marriage." 

58G 


MARRIAGE.  5082-5083 

CHAPTER  II. 

DIVORCE. 

Article  I.  Nullity 5082 

II.  Dissolution 5090 

III.  Causes  for  Denying  Divoece 5111 

IV.  Gkneeal  Pkovlsions  Gl'JG 

ARTICLE  I. 

NULLITY. 

5082.  Grounds  for  annulment  of  marriage. 

Sec.  82.  A  marriage  may  be  annulled  for  any  of  the  following  causes,  existing 
at  the  time  of  the  marriage: 

1.  That  the  party  in  whose  behalf  it  is  sought  to  have  the  marriage  annulled 
was  under  the  age  of  legal  consent,  and  such  marriage  was  contracted  without 
the  consent  of  his  or  her  parents  or  guardian,  or  person  having  charge  of  him 
or  her;  unless,  after  attaining  the  age  of  consent,  such  party  for  any  time  freely 
cohabited  with  the  other  as  husband  or  wife ; 

2.  That  the  former  husband  or  wife  of  either  party  was  living,  and  the  mar- 
riage with  such  former  husband  or  wife  was  then  in  force; 

3.  That  either  party  was  of  unsound  mind,  unless  such  party,  after  coming  to 
reason,  freely  cohabit  with  the  other  as  husband  or  wife; 

4.  That  the  consent  of  either  party  was  obtained  by  fraud,  unless  such  party 
afterward,  with  full  knowledge  of  the  facts  constituting  the  fraud,  freely  cohab- 
ited with  the  other  as  husband  or  wife; 

5.  That  the  consent  of  either  party  was  obtained  by  force,  unless  such  party 
afterwards  freely  cohabited  with  the  other  as  husband  or  wife; 

6.  That  either  party  was,  at  the  time  of  marriage,  physically  incapable  of 
entering  into  the  man*ied  state,  and  such  incapacity  continues,  and  ai:)pears  to 
be  incurable.  [Ameyidment,  approved  March  30,  1874;  Amendments  1873-4,  187; 
took  effect  July  1,  1874.^''> 

5083.  Action  for  nullify,  when  and  by  ichom  commenced. 

Sec.  83.  An  action  to  obtain  a  decree  of  nullity  of  marriage,  for  causes  men- 
tioned in  the  preceding  section,-  must  be  commenced  within  the  periods  and  by 
the  parties  as  follows: 

1.  For  causes  mentioned  in  subdivision  one:  by  the  party  to  the  marriage 
who  was  married  under  the  age  of  legal  consent,  within  four  years  after  arriving 
at  the  age  of  consent;  or  by  a  parent,  guardian,  or  other  person  having  charge 
of  such  non-aged  male  or  female,  at  any  time  before  such  manied  minor  has 
arrived  at  the  age  of  legal  consent: 

2.  For  causes  mentioned  in  subdivision  two:  by  either  party  during  the  life 
of  the  other,  or  by  such  former  husband  or  wife; 

3.  For  causes  mentioned  in  subdivision  three:  by  the  party  injured,  or  rela- 
tive or  guardian  of  the  party  of  unsound  mind,  at  any  time  before  the  death  of 
either  party; 

4.  For  causes  mentioned  in  subdivision  four:  by  the  party  injured,  within 
four  years  after  the  discovery  of  the  facts  constituting  the  fraud; 

5.  For  causes  mentioned  in  subdivision  five:  by  the  injured  pariy,  within 
four  years  after  the  marriage; 

(a)  The  original  section  differed  in  the  first  subdi-  age  of  legal  consent:  unless,  after  attaining  the  age  of 
vision,  which  was  as  follows:  "  1.  That  the  party  seek-  consent,  such  party  f..r  any  tiiue  freely  cohabited  wltU 
ing   to  have  the  marriage  annulled  was  under  the     the  other  as  husband  or  wfe. 

587 


5083-509i  Cn^IL  CODE. 

G.  For  causes  mentioned  in  subdivision  six:  by  the  injured  party,  within  four 
rears  after  the  mamage.  [Anifndmi'nt,  app'oved  3Iarch  30,  1874;  Ainciidmenis 
1873-4,  188;  took  efed  July  1,  lb74/'' 

5084.  CliUdrcn  of  annuUed  man-iige. 

Sec.  84.  "Where  a  marriage  is  annulled  on  the  ground  that  a  fonner  husband 
or  wife  was  li^•ing,  or  on  the  ground  of  insanity,  children  begotten  before  the 
judgment  are  legitimate,  and  succeed  to  the  estate  of  both  parents. 

5085.  Custody  of  children. 

Sec.  85 .  The  covirt  must  award  the  custody  of  the  children  of  a  marriage 
annulled  on  the  ground  of  fraud  or  force  to  the  innocent  parent,  and  may  also 
provide  for  their  education  and  maintenance  out  of  the  property  of  the  guilty 
party. 

5086.  £/}'ect  of  judgment  ofmillify. 

Sec.  8(J.  A  judgment  of  nullity  of  marriage  rendered  is  conclusive  only  as 
against  the  j^arties  to  the  action  and  those  claiming  under  them. 

AETICLE   II. 

DISSOLUTION    or    MABEIAGE. 

.5090.  Marriage,  how  dissolved. 

Sec.  90.  Man-iage  is  dissolved  only: 

1.  By  the  death  of  one  of  the  parties;  or, 

2.  By  the  judgment  of  a  court  of  competent  jurisdiction  decreeing  a  divorce 
of  the  parties.  [Amendment,  approved  March  30,  1874;  Amendments  1873-4,  189; 
took  efed  July  1,  1874.^'" 

5091.  Divorce,  effect  of  judgment. 

Sec.  91.  The  effect  of  a  judgment  decreeing  a  divorce,  is  to  restore  the  parties 
to  the  state  of  unmarried  persons.  [Amendment,  approved  March  30,  1874; 
Amendments  1873-4,  189;  took  effect  July  1,  1874.'"=^ 

5092.  Grounds  of  action  for  divorce. 

Sec.  92.  Divorces  may  be  granted  for  any  of  the  following  causes: 

1.  Adulteiy; 

2.  Extreme  cruelty; 

3.  "Willful  desertion; 

4.  "V\"illful  neglect; 

5.  Habitual  intemperance; 

G.  Conviction  of  felony.  [Amendment,  approved  March  30,  1874;  Amendments 
1873-4,  189;  took  effect  July  1,  1874."'' 

5093.  Adultery  defined. 

Sec.  93.  Adultery  is  the  voluntary  sexual  intercourse  of  a  married  person  with 
a  person  other  tliau  the  offender's  husband  or  wife. 

5094.  Krireme  cruelty,  ivhat. 

Sec.  94.  Extreme  cruelty  is  the  infliction  of  grievous  bodily  injury  or  grievous 
mental  HufTering  ui)on  the  other  by  one  party  to  the  marriage. 

(a)  The  original  bccUod  differed  In  the  flrst  subdl-  (c)  Original  section: 

TlBlon    whi.h  wa«  an  followK:   "1.  For  cuuHf-B  iiic-n-  Sfc.  Ul.  Divorce  is  a  judgment  disRolving  the  mar- 

tloned  In  (iub'llvlKl'iii  1:  by  litlur  ii.irty  tu  the  mar-  riage  and  restoring  the  iiurtjes  to  the  Btatus  of  uumar- 

ri«8f.  or  by  a  giiHrdiaii  or  relative,  within  four  years  ried  perBons. 

after  arriving  at  tli.-  age  of  cou«eut."  (,i)  The  original  section  instead  of  "  may  "  used  the 

(h)   Original  Ke.tlou:  Word  "must." 

Sec.  »0.  .MarriMgi-  luay  be  dlgHolved:  1.  By  the  death 
of  cither  of  the  jiartii-H;  or,  2.  By  a  divorce  adjudged 
by  a  court  of  compctcut  JurlBdlctiuu. 

588 


MAKRIAGE,  6095-5104 

5095.  Desertion,  ivhaf. 

Sec.  95.  Willful  desertion  is  the  voluntary  separation  of  one  of  tlio  married 
parties  from  the  other  with  intent  to  desert. 

5096.  Desertion,  how  manifested. 

Sec.  96.  Persistent  refusal  to  have  reasonable  matrimonial  intercourse  as 
husband  and  wife,  when  health  or  physical  condition  does  not  make  such  refusal 
reasonably  necessary,  or  the  refusal  of  either  party  to  dwell  in  the  same  houso 
with  the  other  party,  when  there  is  no  just  cause  for  such  refusal,  is  desertion. 

5097.  In  case  of  stratagem  or  fraud,  loho  comviits  desertion. 

Sec.  97.  When  one  party  is  induced,  by  the  stratagem  or  fraud  of  the  other 
party,  to  leave  the  family  dwelling-place,  or  to  be  absent,  and  during  such 
absence  the  offending  party  departs  with  intent  to  desert  the  other,  it  is  deser- 
tion by  the  party  committing  the  stratagem  or  fraud,  and  not  by  the  other. 

5098.  In  case  of  cruelty,  loliere  one  party  leaves  the  other,  who  commits  desertion. 
Sec.  98.  Departure  or  absence  of  one  party  from  the  family  dwelling-place, 

caused  by  cruelty  or  by  threats  of  bodily  harm  from  which  danger  would  be 
reasonably  apprehended  from  the  other,  is  not  desertion  by  the  absent  party, 
but  it  is  desertion  by  the  other  party. 

5099.  Separation  by  consent  not  desertion. 

Sec.  99.  Separation  by  consent,  with  or  without  the  understanding  that  one 
of  the  parties  will  apply  for  a  divorce,  is  not  desertion. 

5100.  Separation,  when  becomes  desertion. 

Sec.  100.  Absence  or  separation,  proper  in  itself,  becomes  desertion  when- 
ever the  intent  to  desert  is  fixed  during  such  absence  or  sej^aration.  [Amend- 
vient,  approved  March  30,  1874;  Amendments  1873-4,  189;  took  effect  July  1, 
1874.*=" 

5101.  Consent  to  sepai'ate  revocable. 

Sec.  101.  Consent  to  a  separation  is  a  revocable  act,  and  if  one  of  the  parties 
afterwards,  in  good  faith,  seeks  a  reconciliation  and  restoration,  but  the  other 
refuses  it,  such  refusal  is  desertion. 

5102.  Desertion,  how  cured. 

Sec,  102.  If  one  party  deserts  the  other,  and  before  the  expiration  of  the 
statutory  period  required  to  make  the  desertion  a  cause  of  divorce,  returns  and 
offers  in  good  faith  to  fulfill  the  marriage  contract,  and  solicits  condonation, 
the  desertion  is  cured.  If  the  other  party  refuse  such  offer  and  condonation, 
the  refusal  shall  be  deemed  and  treated  as  desertion  by  such  party  from  the 
time  of  refusal.  [Amendment,,  approved  March  30,  1874;  Amendments  1873-4, 
190;  took  effect  July  1,  1874.^''> 

5103.  Wife  must  abide  by  husband's  selection  of  home,  or  it  is  desertion  on  her 

part. 
Sec  103.  The  husband  may  choose  any  reasonable  place  or  mode  of  living, 
and  if  the  wife  does  not  conform  thereto,  it  is  desertion. 

5104.  If  the  place  is  unfit,  and  wife  refuses  to  conform,  it  is  desertion  by  the  hus- 

band. 
Sec.  104.  If  the  place  or  mode  of  living  selected  by  the  husband  is  unreason- 
able and  grossly  unfit,  and  the  wife  does  not  conform  thereto,  it  is  desertion 
on  the  part  of  the  husband  from  the  time  her  reasonable  objections  are  made 
known  to  him. 

fa)   Ori'Tinal  section-  (&)  The  original  section  instead,  of  •'  a  cause  of  di- 

Lc.Too°  The  separation  and  Intent  to  desert  are  not  voWe ."  hud  the  word«  ••  ^-"jl'^blT  dlemW  i^S  t^.'ted 

always  coincident.     Temporary  absence  or  separation,  instead  of  ••  the  relusal  shall  be  deemed  and  treated 

proper  in  itself,  may  be  converted  into  desertion  when-  as,"  it  had  the  words  •  it  is. 

ever  the  intent  to  desert  is  fixed  during  such  absence 

or  separation. 

589 


5105-5118  CIYIL  CODE. 

5105.  ]ViUftiI  neglect,  what. 

Hec.  105.  AVillful  neglect  is  the  neglect  of  the  husband  to  provide  for  his 
wife  the  common  necessaries  of  life,  he  having  the  ability  to  do  so;  or  it  is  the 
failure  to  do  so  by  reason  of  idleness,  profligacy,  or  dissipation. 

5106.  Habitual  intemperance,  xohat. 

Skc.  lOG.  Habitual  intemperance  is  that  degree  of  intemperance  from  the  nse 
of  intoxicating  ariulcs  which  disqualifies  the  person  a  great  portion  of  the  time 
from  properly  attending  to  business,  or  which  would  reasonably  inflict  a  course 
of  great  mental  anguish  upon  an  innocent  party. 

5107.  JT'thitual  intemperance  for  one  year.  ^ 

bx:c.  107.  "Willful  desertion,  willful  neglect,  or  habitual  intemperance  must 
continue  for  one  year  before  either  is  a  ground  for  divorce. 

ARTICLE  III. 

CAUSES    FOR    DENYING    DIVORCE. 

5111.  Dii-07'ces  denied,  on  slioxoing  what. 

Skc.  111.  Divorces  must  be  denied  upon  showing: 

1.  Connivance;  or, 

2.  Collusion;  or, 

3.  Condonation;  or, 

4.  Recrimination;  or, 

5.  Limitation  and  lapse  of  time. 

5112.  Connivance,  icliat. 

Sec.  112.  Connivance  is  the  corrupt  consent  of  one  party  to  the  commission 
of  the  acts  of  the  other,  constituting  the  cause  of  divorce. 

5113.  Corrupt  consent,  how  manifested. 

Sec.  113.  Corrupt  consent  is  manifested  by  passive  permission,  with  intent 
to  connive  at  or  actively  procure  the  commission  of  the  acts  complained  of. 

5114.  Cnllasion,  what. 

Sec.  Hi.  Collusion  is  an  agreement  betw^een  husband  and  wife  that  one  of 
them  shall  commit,  or  appear  to  have  committed,  or  to  be  represented  in  court 
as  having  committed,  acts  constituting  a  cause  of  divorce,  for  the  purpose  of 
enabling  the  other  to  obtain  a  divorce. 

5115.  Condonation,  xchat. 

Si.c.  115.  Condonation  is  the  conditional  forgiveness  of  a  matrimonial  offense 
constituting  a  cause  of  divorce. 

5116.  Jif(fnb<ites  to  foiidonatian. 

Sic.  110.  Tlie  following  requirements  are  necessary  to  condonation: 

1.  A  knowledge  on  the  part  of  the  condoner  of  the  facts  constituting  the 
cause  (jf  divorce; 

2.  Rec<jnciliation  and  roniission  of  the  offense  by  the  injured  party; 
'.'>.  Restui-ation  of  the  offending  party  to  all  marital  rights. 

5in.    (Jniidonalion  imj/lics  what. 

Skc.  117.  Condonation  implies  a  condition  subsequent;  that  the  forgiving 
party  must  be  treated  with  conjugal  kindness. 

5118.   I'jiidi'nce  (f  condonation. 

Sic.  118.  Where  the  cause  of  divorce  consists  of  a  course  of  offensive  con- 
duct, or  ari.ses  in  case  of  cruelty,  from  successive  acts  of  ill-treatment  which 
may,  aggregately,  constitute  the  offense,  cohabitation,  or  passive  endurance,  or 
conjugal  kindness,  shall  not  be  evidence  of  condonation  of  any  of  the  acts  con- 

590 


MAEKIAGE.  5118-5124 

stituting-  such  cause,  unless  accompanied  by  an  express  agreement  to  condone. 
[Ainendment,  approved  March  30,  1874;  Amendments  1873-4,  19U;  look  effect 
July  1,  1874/^' 

5119.  Condonation,  when  can  he  made. 

Sec.  119.  In  cases  mentioned  in  the  last  section,  condonation  can  bo  made 
only  after  the  cause  of  divorce  has  become  complete,  as  to  the  acts  conii)luiiiod 
of.  [Amendment,  approved  March  30,  1874;  Amendments  1873-4,  190;  look 
effect  Juhj  1,  1874.^''> 

5120.  Concealment  of  facts  in  certain  cases  makes  condonation  void. 

Sec.  120.  A  fraudulent  concealment  by  the  condonee  of  facts  constituting  a 
different  cause  of  divorce  from  the  one  condoned,  and  existing  at  the  time  of 
condonation,  avoids  such  condonation. 

5121.  Condonation,  hmv  revoked. 

Sec  121.  Condonation  is  revoked  and  the  original  cause  of  divorce  revived: 

1.  When  the  condonee  commits  acts  constituting  a  like  or  other  cause  of 
divorce;  or, 

2.  When  the  condonee  is  guilty  of  great  conjugal  unkindness,  not  amount- 
ing to  a  cause  of  divorce,  but  suflficiently  habitual  and  gross  to  show  that  the 
conditions  of  condonation  had  not  been  accepted  in  good  faith,  or  not  fulfilled. 

5122.  Recrimination,  what. 

Sec.  122.  Recrimination  is  a  showing  by  the  defendant  of  any  cause  of 
divorce  against  the  plaintiff,  in  bar  of  the  plaintiff's  cause  of  divorce. 

5123.  Condonation  as  a  recriminatory  defense. 

Sec  123.  Condonation  of  a  cause  of  divorce,  shown  in  the  answer  as  a 
recriminatory  defense,  is  a  bar  to  such  defense,  unless  the  condonation  be 
revoked,  as  provided  in  section  one  hundred  and  twenty-one,  or  two  years  have 
elapsed  after  the  condonation,  and  before  the  accruing  or  completion  of  the 
cause  of  divorce  against  which  the  recrimination  is  shown.  [Ainendment,  ap- 
proved March  30,  1874;  Amendments  1873-4,  190;  took  effect  July  1,  1874.'"' 

5124.  Limitation  of  action  for  divorce. 
SeC.  124.  A  divorce  must  be  denied: 

1.  When  the  cause  is  adultery,  and  the  action  is  not  commenced  within  two 
years  after  the  commission  of  the  act  of  adultery,  or  after  its  discovery  by  the 
injured  party;  or, 

2.  When  the  cause  is  conviction  of  felony,  and  the  action  is  not  commenced 
before  the  expiration  of  two  years  after  a  pardon,  or  the  termination  of  the 
period  of  sentence; 

3.  In  all  other  cases  when  there  is  an  unreasonable  lapse  of  time  before  the 
commencement  of  the  action.  [Amendment,  approved  March  30,  1874;  Amend- 
ments 1873-4,  191;  took  effect  July  1,  1874."^' 

(n)  Original  section:  tion  made  without  undue  influence,  bo  construed  u 

Sec.  Uh.  Where  the  cause  of  divorce  consists  of  a  evidence  of  condonation, 

course  of  oflfensive   conduct  covering  the  prescribed  (c)   Original  section;                                           i,         « 

Bt-itiitory  period,  or  arising,  in  case  of  cruelty,  from  Sicc.  l'i:i.  Condonation  of  a  cause  of  divorce  shown  in 

successive   acts   of  ill    treatment   which  may,   aggre-  the  answer  as  a  recriminatory  di-lcnse  is  a  bar  '"""J''* 

gately,  constitute  the  offense,  cohabitation,  or  passive  defense  when  the  condonee  has  fully  perti>rmert   tne 

endurance,  or  conjugal  kindness,  shall  not  be  evidence  marital  duties,  and  is  without  reproach  since  tne  con- 

of  condonation  of  any  part  of  the  facts  or  period  con-  donation,  or  if  three  years  or  more  have  clapseu  after 

Btituting  such  cans-  s,  unless  accompanied  by  an  ex-  the  con<U>nation,  and  before  the  accruing  or  compie- 

press  ageement  to  condone.  tion  of  the  cause  of  divorce  against  which  the  recrim- 

(6)   Original  section-  iuation  is  shown.                                             i  ji   .  .       i 

Sec.  119.  In  cases  mentioned  in  the  last  section,  only  (</)  The  original  section  in  the  first  «"f''|''''»"°  •«- 

after  the  cause  of  divorce  has  become  complete,  as  to  stead  of  "  two  "  had  the  word  "hve.    and  In  tne  seioncl 

the  acts  complained  of  and  the  period  of  their  contiu-  subdivision  instead  of  "  two  years     naa   _  ""^  Jf"- 

uance,  can  condonation  be  made.     Even  then,  further  In   the   third  subdivision   it   had.  alter      time,     me 

efforts  to  live  with  and  reform  the  offending  party  must  words  "  after  the  commission  ot  the  ononsc. 
nut,  unsupported  by  an  express  agreement  of  condona- 

591 


5125-5139  CIVIL  CODE. 

5125.  Lapse  of  time  establishes  certain  presumiMons. 

Sec.  125.  Unreasonable  lapse  of  time  is  such  a  delay  in  commencing  \he 
action  as  establishes  the  i^resiimption  that  there  has  been  connivance,  collusion, 
or  condonation  of  the  offense,  or  full  acquiescence  in  the  same,  with  intent  to 
continue  the  marriage  relation  notwithstanding  the  commission  of  such  offense. 

5126.  Presumptions  may  be  rebutted. 

Sec  12G.  The  presumptions  arising  from  lapse  of  time  may  be  rebutted  by 
showing  reasonable  grounds  for  the  delay  in  commencing  the  action. 

5127.  Limitation  of  time. 

Sec.  127.  There  are  no  limitations  of  time  for  commencing  actions  for 
divorce,  except  such  as  are  contained  in  section  124. 

5128.  Divorces  granted,  when. 

Sec.  128.  A  divorce  must  not  be  granted  unless  the  plaintiff  has  been  a 
resident  of  the  state  for  six  mouths  next  preceding  the  commencement  of  the 
action. 

5129.  Proof  of  actual  residence  required — Presumptions  do  not  apply. 

Sec.  129.  In  actions  for  divorce  the  presumption  of  law,  that  the  domicile  of 
the  husband  is  the  domicile  of  the  wife,  does  not  apply.  After- separation  each 
may  have  a  separate  domicile,  depending  for  proof  ujDon  actual  residence,  and 
not  ujion  legal  j)resumj)tions. 

5130.  Divorce  not  granted  by  default,  etc. 

Sec  130.  No  divorce  can  be  granted  upon  the  default  of  the  defendant,  or 
upon  the  uncorroborated  statement,  admission,  or  testimony  of  the  jDarties,  or 
ujjon  any  statement  or  finding  of  fact  made  by  a  referee;  but  the  court  must,  in 
addition  to  any  statement  or  finding  of  the  referee,  require  proof  of  the  facts 
alleged,  and  such  proof,  if  not  taken  before  the  court,  must  be  upon  written 
questions  and  answers.  [Amendment,  apjproved  March  30,  1874;  Amendments 
1873-4,  191;  took  effect  July  1,  1874.*=^> 

AETICLE  IV. 

GENERAL    PROVISIONS. 

« 

5136.  Belipf  in  some  cases,  lohere  reparation  denied. 

Sec  13G.  Though  judgment  of  divorce  is  denied,  the  court  may,  in  an  action 
for  divorce,  provide  for  the  maintenance  of  the  wife  and  her  children,  or  any  of 
them,  b}'  the  husband. 

5137.  Expense  of  action. 

Sec.  137.  "While  an  action  for  divorce  is  pending,  the  court  may,  in  its  dis- 
cretion, require  the  husband  to  j^ay  as  alimony  any  money  necessary  to  enable 
the  wife  to  support  herself  or  her  children,  or  to  prosecute  or  defend  the  action. 
?  137.     Add,  "  When  the  hu.sband  willfully  deserts  the  wife 

lemay.withoutapplyinfr  for  a.Iivoroe,mHintain  in  the  District  .«  U        •     ^  + 

ourt  an  aK.on  aj:a.n.«t  inin    for  pern.anent  support  and  nnin-  '^^^  before    Or    after   judgment, 

nance  of  hcrH-lf  or  of  hersHf  and  children,  during  the  pendency  '  "  " ' 

such  action  the  Court  may  in  iis  discretion  require  the  hus- 


iucation  of  the  children  of  the 


.„,,  ,  V.  w^>..  -  ...<V  II,   lift   uiscreuon    require  the  hurt-  A    fnn\r    of    nnv    tiinP    vopntp    CtY 

md  to  pay  as  alimony  any  money  necessary  for  the  prosecu-  ^        ^  ^  vacate    01 

jn  of  the  action  and  for  .support  and  maintenance.     The  final  I 

dpnent  m  8uch  action  may  he  enforced  hy  the  Court  by  such  !  ,.  ,   j  4         -r 

der  or  orders  as  in  its  discretion  it  may  from  *ime  to  time  "reparation  granted  tO  Wife. 

■em  necessary,  and  such  order  or  order.s  may  be  varied,  al-  ffense  of  the  husband,  the  COUrt 

red  or  revoked  at  the  discretion  of  the  Court "     fin  effi-ct  *  ^.i        i  -n  *  at, 

irch  20, 1878.]  ^  •  of  the  children  of  the  marriage, 

,-,  ^..^lunin'-K  ii'ju:  ui;uu  auj  dtatement  or  finfling  of  fact  made  by  a  referee, 

Sec.  1.30.  No  divorce  must  be  granted  upon  the  de-  but  the  court  niust  require  proof  of  the  facts  alleged, 

fault  of  the  defendant,  or  upon  the  etatement,  admls-  which  proof,  if  taken  before  a  referee,  must  be  upon 

■ion,  or  uncorroborated  teBtimony  of  the  parties,  or  written  questions  and  answers. 

592 


MARRIAGE.  5130-514G 

and  to  make  such  suitable  allowance  to  the  wife  for  her  supi:)ort,  durin;,'  her 
life,  or  for  a  shorter  period,  as  the  court  may  deem  just,  having  regard  to  the 
circumstances  of  the  parties  respectively;  and  the  court  may,  from  time  to  time, 
modify  its  orders  in  these  respects. 

5140.  Security  for  maintenance  and  alimony. 

Sec.  140.  The  court  may  require  tlie  husband  to  give  reasonable  security  for 
providing  maintenance  or  making  any  payments  required  under  the  provisions 
of  this  chapter,  and  may  enforce  the  same  by  the  ai^pointment  of  a  receiver,  or 
by  any  other  remedy  applicable  to  the  case. 

5141.  Court  shall  resort  to  what,  in  executing  certain  sections. 

Sec.  141.  In  executing  the  five  jn-eceding  sections  the  court  must  resort: 

1.  To  the  community  property;  then, 

2.  To  the  separate  jaroperty  of  the  husband. 

5142.  Ifivi/e  has  sufficient  for  her  support,  court  may  withhold  allowance. 

Sec.  142.  "When  the  wife  has  either  a  separate  estate,  or  there  is  community 
property  sufficient  to  give  her  alimony  or  a  proper  supj)ort,  the  court,  in  its 
discretion,  may  withhold  any  allowance  to  her  out  of  the  separate  jnoperty  of 
the  husband. 

5143.  Community  and  separate  property  may  be  subjected  to  support  and  educate 

children. 
Sec.  143.  The  community  proj^erty  and  the  separate  property  may  be  sub- 
jected to  the  support  and  education  of  the  children  in  such  proportions  as  the 
court  deems  just. 

5144.  Legitimacy  of  issue.  /^ 

Sec.  144.  When  a  divorce  is  granted  for  the  adultery  of  the  husband,  the 
legitimacy  of  children  of  the  marriage  begotten  of  the  wife  before  the  com- 
mencement of  the  action  is  not  affected. 

5145.  Same. 

Sec  145.  When  a  divorce  is  granted  for  the  adultery  of  the  wife,  the  legit- 
imacy of  children  begotten  of  her  before  the  commission  of  the  adultery  is  not 
affected;  but  the  legitimacy  of  other  children  of  the  wife  may  be  determined 
by  the  court,  upon  the  evidence  in  the  case. 

5146.  Community  property  and  homestead,  how  disposed  of  on  divorce. 

Sec  146.  In  case  of  the  dissolution  of  the  marriage  by  the  decree  of  a  court 
of  competent  jurisdiction,  the  community  property,  and  the  homestead,  shall 
be  assigned  as  follows: 

1.  If  the  decree  be  rendered  on  the  ground  of  adultery  or  extreme  cruelty,  the 
community  property  shall  be  assigned  to  the  respective  parties  in  such  i)ropor- 
tions  as  the  court,  from  all  the  facts  of  the  case,  and  the  condition  of  the 
parties,  may  deem  just. 

2.  If  the  decree  be  rendered  on  any  other  ground  than  that  of  adultery  or 
extreme  cruelty,  the  community  property  shall  be  equally  divided  between  the 
parties. 

3.  If  a  homestead  has  been  selected  from  the  community  property,  it  may  be 
assigned  to  the  innocent  party,  either  absolutely,  or  for  a  limited  period,  sub- 
ject in  the  latter  case,  to  the  future  disposition  of  the  court,  or  it  may,  in  the 
discretion  of  the  court,  be  divided,  or  be  sold  and  the  proceeds  divided. 

4.  If  a  homestead  has  been  selected  from  the  separate  property  of  either,  it 
shall  be  assigned  to  the  former  owner  of  such  property,  subject  to  the  power  of 

38  593 


5UG-51G1  CIVIL  CODE. 

the  coui-t  to  assign  it  for  a  limited  period  to  the  innocent  party.     [Amendment, 
approved  March  30,1874;  Amendments  1873-4,  191;  took  effect  July  1,  1874.'^> 

5147.  Order  of  court  for  disposition  of  jyroperty. 

Sec.  147.  The  court,  in  rendering  a  decree  of  divorce,  must  make  such  order 
for  the  disposition  of  the  community  property,  and  of  the  homestead,  as  in  this 
chapter  provided,  and,  whenever  necessary  for  that  purpose,  may  order  a  parti- 
tion or  sale  of  the  property  and  a  dhision  or  other  disposition  of  the  proceeds. 
[Amendmeid,  approved  March  30,  1874;  Amendments  1873-4,  192;  took  effect 
July!,  1874.^"' 

5148.  Order  subject  to  revision  on  appeal. 

Sec.  148.  The  disposition  of  the  community  property,  and  of  tbe  homestead, 
as  above  provided,  is  subject  to  revision  on  appeal  in  all  particulars,  including 
those  which  are  stated  to  be  in  the  discretion  of  the  court.  [Amendment,  ap- 
prurrd  Mairh  30,  1874;  Amendments  1873-4,  192;  took  effect  July  1,  1874."=' 

CHAPTEE   III. 

HUSBAND    AND   WIFE. 

5155.  Mutual  obligations  of  husband  and  wife. 

Sec.  155.  Husband  and  wife  contract  towards  each  other  obligations  of 
mutual  respect,  fidelity,  and  support. 

5156.  Bights  of  husband,  as  head  of  family. 

Six.  15G.  The  husband  is  tbe  head  of  the  family.  He  may  choose  any  reason- 
able place  or  mode  of  living,  and  the  wife  must  conform  thereto. 

5157.  In  other  respects  their  interests  separate. 

Sec.  157.  Neither  husband  nor  wife  has  any  interest  in  the  property  of  the 
other,  but  neither  can  be  excluded  from  the  other's  dwelling. 

5158.  Ha.sband  and  wife  may  make  contracts. 

Sec  158.  Either  husband  or  wife  may  enter  into  any  engagement  or  trans- 
action with  the  other,  or  with  any  other  person,  respecting  property,  which 
either  might  if  unmarried;  sul)ject,  in  transactions  betAveen  themselves,  to  the 
general  rules  which  control  the  actions  of  persons  occupying  confidential  rela- 
tions with  each  other,  as  defined  by  the  title  on  trusts. 

5159.  Hinvfar  may  impair  their  legal  obligations. 

Sec.  159.  A  husband  and  wife  cannot,  by  any  contract  with  each  other,  alter 
th(  ir  legal  relations,  except  as  to  property,  and  excej^t  that  they  may  agree,  in 
writing,  to  an  immediate  separation,  and  may  make  provision  for  the  snjjport 
of  oithf-r  of  them  and  of  their  children  during  such  separation.  \Amendm<7d, 
approvrd  March  30,  1874;  Amendinents  1873-4,  193;  took  effect  July  1,  1874.^'^' 
51G0.   Consideration  for  agreement  of  separation . 

Sec.  100.  Tlie  nmtual  consent  of  the  parties  is  a  sufficient  consideration  for 
such  an  agreement  as  is  mentioned  in  the  last  section. 
516*1.   Miiy  he  job d  tenants,  etc. 

Si;c.  KJl.  A  husband  and  A\ife  may  hold  property  as  joint  tenants,  tenants  in  • 
common,  or  as  community  jiroperty. 

(n)  Or  (.'liuil  nr-rtlon:  the  grouinl  nf  ndHUcry  or  pxtremc  fruelty.  the  p(l^^y  in 

^"    II'     li,  .1.-.    ..1   tlic  .li:-K"lutii.ii  of  Uic- niarriBBe  fiiult  in  only  entitled  to  such  portion  of  the comnniuity 

'■:     ■■    !■■    ■  •      I...  •      r:t.l    .  ..!  ,|,itent  jurlKilietion,  the  proixTty  as  the  court  granting  the  decree  miiy,  in  its 

.■nn.'iiii)     iri.^ity    iMiihl    bi-   iqnaly    divided    be-  diKcretion,  from  the  facts  of  the  case,  deem  just, 

twi  I II  111.    I  anil  h;  and  the  court  KrantiiiK  the  decree  (c)   Original  section: 

nlu^t  iimki-  Kuch  order  for  the  dlvihlon  r,f  the  com-  Sko.  U-*.  The  order  for  the  disposition  of  the  com- 

I.. unity  property,  or  the  hale  and  efjiial  dihtiihutlon  of  niunity  property,  under  the  preceding  se(  tion.  in  sub- 

u..  j.rocetilb  thereof,  hh  the  nature  of  the  case  may  re-  ject  toVevisicm  on  appeal  in  all  respect-.  Including  the 

I  "'re.  exeriise  of  discretion  bv  the  court  below. 

(fe)  Oripinnl  section:  (</)  The   original  section  did  have   the   words  "  in 

bjic.  H..  When  the  decree  of  divorce  is  rendered  on  writing." 

594 


MARRIAGE.  51G2-5173 

5162.  Separate  property  of  the  vnfe. 

Sec.  162.  All  property  of  the  wife,  owned  b}'  her  before  man-iaf^e,  and  that 
acquired  afterwards  by  gift,  bequest,  devise,  or  descent,  with  the  rents,  issues, 
and  profits  thereof,  is  her  separate  property'.  The  wife  may,  witliout  the 
consent  of  her  husband,  convey  her  separate  property. 

5163.  Separate  property  of  the  husband. 

Sec.  163.  All  projjert}^  owned  by  the  husband  before  niarrinf,fe,  and  tlmt 
acquired  afterwards  by  gift,  bequest,  devise,  or  descent,  with  the  rents,  issues, 
and  profits  thereof,  is  his  separate  property'. 

5164.  Community  property. 

Sec.  164.  All  other  property-  acquired  after  marriage,  by  either  husband  ov 
wife,  or  both,  is  community  property. 

5165.  Inventory  of  sejoarate  property  of  wife. 

Sec.  1G5.  A  full  and  complete  inventory  of  the  separate  personal  property 
of  the  wife  may  be  made  out  and  signed  by  her,  acknowledged  or  proved  in 
the  manner  required  by  law  for  the  acknowledgment  or  proof  of  a  grant  of  real 
property  by  an  unmarried  woman,  and  recorded  in  the  office  of  the  recorder  of 
the  county  in  which  the  parties  reside. 

5166.  Filing  inventory  notice  of  wife's  title  and  prima  fame  evidence. 

Sec.  166.  The  filing  of  the  inventory  in  the  recorder's  office  is  notice  and 
prima  facie  evidence  of  the  title  of  the  wife.  [Amendment,  approved  March  30, 
1874;  Amendments  1873-4,  193;  took  effect  July  1,  1874.'^^ 

5167.  Community  property,  when  not  Ual)le  for  contracts  of  wife. 

Sec.  167.  The  property  of  the  community  is  not  liable  for  the  contracts  of\ 
the  wife,  made  after  marriage,  unless  secured  by  a  pledge  or  mortgage  thereof  V 
executed  by  the  husband.    [Aynendment,  approved  March  30,  1874;  Amendments   I 
1873-4,  193;  took  effect  July  1,  1874.'''>  ^j 

5168.  Earnings  of  wife  not  liable  for  debts  of  husband. 

Sec.  168.  The  earnings  of  the  wife  are  not  liable  for  the  debts  of  the 
husband, 

5169.  Earnings  of  wife,  when  living  separate,  'ieparate  p)roperty . 

Sec.  169.  The  earnings  and  accumulations  of  the  wife,  and  of  her  minor 
children  living  with  her  or  in  her  custody,  while  she  is  living  separate  from  her 
husband,  are  the  separate  property  of  the  wife. 

5170.  Liability  for  debts  of  wife  contracted  before  mai'riage. 

Sec.  170.  The  separate  property  of  the  husband  is  not  liable  for  the  debts  of 
the  wife  contracted  before  the  marriage. 

5171.  Wfe's  property  not  liable  for  debts  of  husband,  but  liable  for  her  own  debts. 
Sec.  171.  The  separate  property  of  the  wife  is  not  liable  for  the  debts  of  her 

husband,  but  is  liable  for  her  own  debts,  contracted  before  or  after  marriage. 

5172.  Power  of  husband  over  community  jjroperly. 

Sec.  172.  The  husband  has  the  management  and  control  of  the  community 
in-operty,  with  the  like  absolute  power  of  disposition  (other  than  testamentary) 
as  he  has  of  his  separate  estate. 

5173.  Courtesy  and  dower  not  alloioed. 

Sec,  173.  No  estate  is  allowed  the  husband  as  tenant  by  courte.'^y  upon  the 
death  of  his  wife,  nor  is  any  estate  in  dower  allotted  to  the  wife  upon  the  death 
of  her  husband. 

(a)  The  original  had  the  word  "  primary"  instead  of         (6)  Original  section:  .  ^      ,._ 

"  prima  facie."  Sec.  1(17.  A  wife  cannot  make  a  contract  for  the  pay- 

ment of  money. 

595 


5174-5193  CIVlh  CODE. 

5174.  Uusbaiid  liable  for  support  o/ivife. 

Sec.  174.  If  the  hu.sbaiul  ueglect  to  make  adequate  provision  for  the  siipporfc 
of  his  wife,  except  iu  the  cases  mentioned  in  the  next  section,  any  other  person 
may,  in  good  faith,  supply  her  with  articles  necessary  for  her  support,  and 
recover  the  reasonable  value  thereof  from  the  husband.  [Amendment,  approved 
.March  30,  1874;  Jmendmeuts  1873-4,  193;  took  efect  Juhj  1,  1874.^"' 

5175.  M'hen  not  liable. 

Sec.  175,  A  husband  abandoned  by  his  wife  is  not  liable  for  her  support  until 
she  oflers  to  return,  unless  she  was  justified,  by  his  misconduct,  in  abandoning 
him;  nor  is  he  liable  for  her  support  when  she  is  living  separate  from  him,  by 
agi-eement,  unless  such  support  is  stipulated  in  the  agreement.  [Amendment, 
approved  March  30,  1874;  Amendments  1873-4,  193;  took  effect  Juhj  1,  1874.*"^ 

5176.  When  wife  mu^t  support  hiif'band. 

Sec  176.  The  wife  must  support  her  husband,  when  he  has  not  deserted  her, 
out  of  her  se^iarate  property,  when  he  has  no  separate  property,  and  there  is  no 
community  i^rojierty,  and  he  is  unable,  from  infirmity,  to  support  himself. 
\Aine)idnient,  approved  March  30,  1874;  Amendments  1873-4,  194;  took  effect 
Juhj  1,  1874.'^' 

5177.  Bights  of  husband  governed  by  xoliat. 

Sec  177.  The  property  rights  of  husband  and  wife  are  governed  by  this 
chapter,  unless  there  is  a  marriage  settlement  containing  stipulations  contrjiry 
thereto. 

5178.  Marriage  settlement  co7dracts,  how  executed. 

Sec  178.  All  contracts  for  marriage  settlements  must  be  in  writing,  and  exe- 
cuted  and  acknowledged  or  proved  in  like  manner  as  a  grant  of  land  is  required 
to  be  executed  and  acknowledged  or  proved. 

5179.  To  be  acknowledged  and  recorded. 

Sec  179.  When  such  contract  is  acknowledged  or  proved,  it  must  be 
recorded  in  the  office  of  the  recorder  of  every  county  in  which  any  real  estate 
may  be  situated  which  is  granted  or  aifected  b}'  such  contract. 

5180.  Effect  of  recording. 

Sec  180.  The  recording  or  non-recording  of  such  contract  has  a  like  effect  as 
the  recording  or  non-recording  of  a  grant  of  real  proj)erty. 

5181.  Minors  may  make  marriage  settlements. 

Sec.  181.  A  minor  capable  of  contracting  marriage  may  make  a  valid  mamage 
settlement. 


TITLE  II. 

JJarcut  mh  (Tljilti. 

Chapter  I.  P.v  I'lmir 5193 

II.  ]jv  Adoi'tion 5221 

CHAPTER  I. 

CHILDREN   BY  BIRTH. 
5193.    Ijpgilimacy  (f  children  born  in  wedlock. 

Si;c  193.  All  cljildren  born  in  wedlock  are  presumed  to  be  legitimate. 

(n\  Tho  r^{.in«l  Bccllon  <H<1  not  l.Hvr.  the  words,  •'^vh,:ti  U-.  has  not  deserted  her."    Instead  of  "  there 

V  m^nti<.UL-d  In  the  next  M.-ction."  Ik  "  it  had  tlie  word  "  they."  und  iiiBtead  of  '•  he  is  uu- 

.  tlon  aid  uot  have  t  i._  iiht  ilauFC  i.l.le,  tv„u,  infiruiity."  it  had  "  he  from  iufiniiity  jb  not 

:.<:  words     nor  is  he  linl.le."  able  or  comuettnt." 

''I    ill'    'iiruiii   Bectioii   did   uot   have   the  wordK 

590 


PAEENT  AND  CHILD.  5194-5202 

5194.  Legitimacy  of  children  born  after  dissohilion  of  marriage. 

Sec.  194.  All  children  of  a  woman  who  has  been  married,  horn  within  ten 
months  after  the  dissolution  of  the  marriaj^e,  are  presumed  to  ho  Ic'ltimute 
children  of  that  marriage.  [Amendment,  api.n-oved  Jilarch  30,  1HT4;  Amendments 
1873-4,  194;  took  effect  July  1,  1874.^"' 

5195.  WJio  may  dispute  legitimacy  of  child. 

Sec.  195.  The  presumption  of  legitimacy  can  be  disputed  only  by  the  husband 
or  wife,  or  the  descendant  of  one  or  both  of  them.  Illegitimacy,  in  such  case, 
ma}'  be  proved  like  any  other  fact. 

5196.  Obligation  of  parents  for  support  and  education  of  children. 

Sec.  196.  The  parent  entitled  to  the  custody  of  a  child  must  give  him  support 
and  education  suitable  to  his  circumstances.  If  the  suppoi-t  and  education 
which  the  father  of  a  legitimate  child  is  able  to  give  are  inadequate,  the  mother 
must  assist  him  to  the  extent  of  her  ability. 

5197.  Custody  of  legitimate  child. 

Sec.  197.  The  father  of  a  legitimate  unmarried  minor  child  is  entitled  to  its 
custody,  services,  and  earnings;  but  he  cannot  transfer  such  custody  or  ser- 
vices to  any  other  person,  except  the  mother,  without  her  written  consent,  un- 
less she  has  deserted  him,  or  is  living  separate  from  him  by  agreement.  If  the 
father  be  dead,  or  be  unable,  or  refuse  to  take  the  custody,  or  has  abandoned 
his  family,  the  mother  is  entitled  thereto.  [Amendment,  approved  March  30, 
1874;  Amendments  1873-4,  194;  took  effect  July  1,  1874.^"' 

5198.  Husband  and  wife  living  separate,  neither  to  have  superior  right  to  custody 

of  children. 
Sec  198.  The  husband  and  father,  as  such,  has  no  rights  superior  to  those 
of  the  wife  and  mother,  in  regard  to  the  care,  custody,  education,  and  control 
of  the  children  of  the  marriage,  while  such  husband  and  wife  live  separate  and 
apart  from  each  other. 

5199.  When  husband  or  wife  may  bring  action  for  exclusive  control  of  children. 
Sec  199.  Without  application  for  a  divorce,  the  husband  or  the  wife  may 

bring  an  action  for  the  exclusive  control  of  the  children  of  the  marriage;  and 
the  court  may,  during  the  pendency  of  such  action,  or  at  the  final  heaiing 
thereof,  or  afterwards,  make  such  order  or  decree  in  regard  to  the  support, 
care,  custody,  education,  and  control  of  the  children  of  the  marriage,  as  may 
be  just,  and  in  accordance  with  the  natural  rights  of  the  parents  and  the  best 
interests  of  the  children,  and  may  at  any  time  thereafter  amend,  vary,  or  modify 
such  order  or  decree,  as  the  natural  rights  and  the  interests  of  the  parties, 
including  the  children,  may  require. 

5200.  Custody  of  an  illegitimate  child. 

Sec  200.  The  mother  of  an  illegitimate  unmarried  minor  is  entitled  to  its 
custody,  services,  and  earnings. 

5201.  Alloivance  to  parent. 

Sec.  201.  The  proper  court  may  direct  an  allowance  to  be  made  to  the  parent 
of  a  child,  out  of  its  property,  for  its  past  or  future  supi^ort  and  education,  on 
such  conditions  as  may  be  proper,  whenever  such  direction  is  for  its  benefit. 

5202.  Parent  cannot  control  property  of  child. 

Sec  202.  The  parent,  as  such,  has  no  control  over  the  property  of  the  cliild. 

la)  Oriein-il  Rpption-  C*'  The  original  section,  instead  of  "  unless  she  has 

Sec.  wl  All  children  of  a  woman  who  has  been  mar-     deserted  him   or  is  ^Y'V^?.'^:^^^  ^T^,^^ 
ried,  born  within  ten  months  after  the  dissolution  of     ment,"  had  the  words     il  she  18  living  and  callable  ot 
the  marriage,  are  presumed  to  be  legitimate.    But  if     consent, 
during  such  period  she  marries  again,  and  afterwards 
has  a  child,  it  is  presumed  to  be  her  legitimate  off- 
spring by  the  second  husband. 

597 


5203-5212  CIVIL  CODE. 

5203.  lymedy  for  parental  abuse. 

Slc.  20o.  The  al>use  of  parental  authority  is  the  subject  of  juJicial  cognizance 
iu  a  civil  action  brought  by  the  chiki,  or  by  its  rehitive  within  the  third  degree, 
or  by  the  supervisors  of  the  county  where  the  child  resides;  and  when  the  abuse 
is  established,  the  child  may  be  freed  from  the  dominion  of  the  parent,  and  the 
duty  of  support  and  education  enforced. 

5204.  ]I7je»  parental  auihorily  ceases. 

Stc.  2U4.  The  authority  of  a  parent  ceases: 

1.  Tpon  the  appointment,  by  a  court,  of  a  guardian  of  the  person  of  a  child; 

2.  Upon  the  marriage  of  a  child;  or, 

3.  Upon  its  attaining  majority.  '' 

5205.  Bemedij  ichen  parent  dies  without  providing  for  svjyport  of  child. 

Six.  205.  If  a  parent  chargeable  with  the  suj^port  of  a  child  dies,  leav^ing  it 
chargeable  to  the  county,  and  leaving  an  estate  sufficient  for  its  support,  the 
supervisors  of  the  county  may  claim  provision  for  its  support  from  the  parent's 
tstate  by  civil  action,  and  for  this  purpose  may  have  the  same  remedies  as  any 
L-reditors  against  that  estate,  and  against  the  heirs,  devisees,  and  next  of  kin  of 
the  jtarent. 

5206.  Eeciprocal  duties  of  parents  and  children  in  maintaining  each  other. 

Sec  20G.  It  is  the  duty  of  the  father,  the  mother,  and  the  children  of  any 
]ioor  person  who  is  unable  to  maintain  himself  by  work,  to  maintain  such  person 
to  the  extent  of  their  ability.  The  i)romise  of  an  adult  child  to  pay  for  neces- 
saries previously  furnished  to  such  parent  is  binding. 

5207.  117(0!  parent  is  liable  for  necessaries  supplied  to  child. 

Skc.  207.  If  a  parent  neglects  to  provide  articles  necessary  for  his  child  who 
is  under  his  charge,  according  to  his  circumstances,  a  third  person  may  in  good 
faith  supply  such  necessaries,  and  recover  the  reasonable  value  thereof  from  the 
parent. 

5208.  Mlten  parent  not  liable  for  svpport  furnished  child. 

Skc.  208.  A  parent  is  not  bound  to  compensate  the  other  j^arent,  or  a  relative, 
fur  the  voluntary  support  of  his  child,  without  an  agreement  for  compensation, 
nor  to  comi)ensate  a  stranger  for  the  support  of  a  child  who  has  abandoned  the 
jKircnt  without  just  cause. 

5209.  Jliisbaiid  not  hound  for  support  of  wife's  children  by  former  marriage. 
Si;f.  2U0.   A  husband  is  not  bound  to  maintain  his  wife's  children  by  a  former 

husband;  but  if  he  receives  them  into  his  family  and  supports  them,  it  is  pre- 
sumed that  he  does  so  as  a  parent,  and  where  such  is  the  case,  they  are  not 
liable  to  him  for  their  support,  nor  he  to  them  for  their  services. 

5210.  (Joiitpn)mlion  and  support  of  adult  child. 

Hec.  210.  "Where  a  child,  after  attaining  majority,  continues  to  serve  and  to 
be  supported  by  the  parent,  neither  party  is  entitled  to  compensation,  in  the 
aljsence  of  an  agreement  therefor. 

5211.  Parent  may  rrliurpiii^h  si-rcices  and  custody  of  child. 

Sj.c.  211.  The  parent,  whether  solvent  or  insolvent,  may  relinquish  to  the 
'hild  the  right  of  controlling  him  and  receiving  his  earnings.  Abandonment 
\}\  \]\i:  parent  is  i)resuuii)tive  evidence  of  such  relinipiishment. 

5212.  Wftgi-H  iff  min(n'i(. 

Skc.  212.  The  wages  of  a  minor  employed  in  service  may  be  paid  to  him  until 
tlie  parent  or  guardian  entitled  thereto  gives  the  employer  notice  that  he  claims 
such  wages.  \AmeHdmenl,  approved  March  30,  1874;  Amendments  1873-4,  194; 
t'Mjk  i'Jfecl  July  1,  1874."^ 

(a)  ThP  orlKlnal  wictton,  in  tJn-  placf  of  ■•  until,"  had  the  words  "  unleBS,  within  thirty  davri  after  the  com- 
■neneeiai-ut  of  the  Bcrvlce." 

598 


PARENT  AND  CHILD.  5213-522G 

5213.  Bight  of  parent  to  determine  residnice  of  elidd. 

Sec.  213.  A  parent  entitled  to  the  custody  of  a  child  has  a  right  to  change 
his  residence,  subject  to  the  jDower  of  the  proper  court  to  restrain  a  removal 
which  would  prejudice  the  rights  or  welfare  of  the  child. 

5214.  Wife  in  ceriain  cases  may  obtain  custody  of  minor  children. 

Sec.  214.  When  a  husband  and  wife  live  in  a  state  of  separation,  without 
being  divorced,  any  court  of  comjoetent  jurisdiction,  upon  a])i)lic-atiun  of  citlior, 
if  an  inhabitant  of  this  state,  may  inquire  into  the  custody  of  any  unmarried 
minor  child  of  the  marriage,  and  may  award  the  custody  of  such  child  to  either, 
for  such  time  and  under  such  regulations  as  the  case  may  require.  The  decis- 
ion of  the  court  must  be  guided  by  the  rules  prescribed  in  section  240. 

5215.  Child  legitimized  by  marriage  of  pareids. 

Sec  215.  A  child  born  before  wedlock  becomes  legitimate  by  the  subsequent 
marriage  of  its  parents.  [Nero  section,  approved  3Iarch  30,  1874;  Amendments 
1873-4,  195;  took  effect  July  1,  1874. 

CHAPTER  II. 

ADOPTION. 

5221.  Child  may  be  adopted. 

Sec  221.  Any  minor  child  may  be  adopted  by  any  adult  j^erson,  in  the  cases 
and  subject  to  the  rules  prescribed  in  this  chapter. 

5222.  Who  may  adopt. 

Sec.  222.  The  person  adopting  a  child  must  be  at  least  ten  j-ears  older  than 
the  person  adopted.  [Amendment,  aprproved  3Iarch  30,  1874;  Amendments 
1873-4,  195;  took  effect  July  1,  1874. '"> 

5223.  Consent  necessary. 

Sec  223.  A  married  man,  not  lawfully  separated  from  his  wife,  cannot  adopt 
a  child  without  the  consent  of  his  wife;  nor  can  a  married  woman,  not  thus 
separated  from  her  husband,  without  his  consent,  provided  the  husband  or  wife, 
not  consenting,  is  capable  of  giving  such  consent.  [Amendment,  apjproved 
March  30,  1874;  Amendments  1873-4,  195;  took  effect  July  1,  1874."'> 

5224.  Consent  of  child's  ptarents. 

Sec.  224.  A  legitimate  child  cannot  be  adopted  without  the  consent  of  its 
parents,  if  living,  nor  an  illegitimate  child  without  the  consent  of  its  mother,  if 
living,  except  that  consent  is  not  necessar}^  from  a  father  or  mother  dejinved  of 
civil  rights,  or  adjudged  guilty  of  adultery  or  of  cruelty,  and  for  either  cause 
divorced,  or  adjudged  to  be  a  habitual  drunkard,  or  who  has  been  judicially 
deprived  of  the  custody  of  the  child  on  account  of  cruelty  or  neglect. 

5225.  Consent  of  child. 

Sec  225.  The  consent  of  a  child,  if  over  the  age  of  twelve  years,  is  necessary 
to  its  adoption. 

5226.  Proceedings  on  adoption. 

Sec  226.  The  person  adopting  a  child,  and  the  child  adopted,  and  the  other 
persons,  if  within  or  residents  of  this  state,  whose  consent  is  necessaiy,  must 
appear  before  the  county  judge  of  the  county  where  the  person  adopting  resides; 
and  the  necessary  consent  must  thereupon  be  signed  and  an  agreement  be  exe- 
cuted by  the  person  adopting,  to  the  effect  that  the  child  shall  be  adopted  and 

(a)  Original  section:  ('')  The  original  eeotion  did  not  have  the  last  rlause 

Sec.  22-2.  The  person  adopting  a  child  niuKt  be  at     commencing    -ftith    the  word£  "nor    can  a   mamed 
least  fifteen  years  older  than  the  person  adopted,  and     woman." 
must  have  been  married,  and  if  a  woman,  must  be  a 
widow,  or  be  lawfully  divorced  from  her  husband  with- 
out her  fault. 

599 


5226-5238  CIYIL  CODE. 

treated  in  all  respects  as  his  owu  lawful  child  should  be  treated.  If  the  per- 
sons whose  consent  is  necessary  are  not  within  or  are  not  residents  of  this  state, 
then  theii-  \\'i'itten  consent,  duly  proved  or  acknowledged  according  to  sections 
1182  and  1183  of  this  code,  shall  be  filed  in  said  county  court  at  the  time  of  the 
application  for  adoption.  \ Amendment,  approved  February  9,  1876;  Amendments 
1875-6,  69;  took  effect  im mediately.'-'''' 

5227.  Judge's  order. 

Sec.  227.  The  judge  must  examine  all  persons  appearing  before  him  pursuant 
to  the  last  section,  each  sej^arately,  and  if  satisfied  that  the  interests  of  the  child 
will  be  promoted  by  the  adoption,  he  must  make  an  order  declaring  that  the 
child  shall  thenceforth  be  regarded  and  treated  in  all  respects  as  the  child  of  the 
person  adopting. 

5228.  Effect  of  adoption — Rights  and  duties. 

Sec.  228.  A  child,  when  adopted,  may  take  the  family  name  of  the  person 
adopting.  After  adoption,  the  two  shall  sustain  towards  each  other  the  legal 
relation  of  parent  and  child,  and  have  all  the  rights  and  be  subject  to  all  the 
duties  of  that  relation.  [Amendment,  approved  March  30,  1874;  Amendments 
1873-4,  195;  took  eff'ect  July  1,  1874.'"^ 

5229.  Eff'ect  on  former  relations  of  child. 

Sec  229.  The  parents  of  an  adopted  child  are,  from  the  time  of  the  adoption, 
relieved  of  all  parental  duties  towards,  and  all  responsibility  for,  the  child  so 
adopted,  and  have  no  right  over  it. 

5230.  Adoption  of  illegitimate  child. 

Sec.  230.  The  father  of  an  illegitimate  child,  by  publicly  acknowledging  it  as 
his  own,  receiving  it  as  such,  with  the  consent  of  his  wife,  if  he  is  married,  into 
his  family,  and  otherwise  treating  it  as  if  it  were  a  legitimate  child,  thereby 
adopts  it  as  such;  and  such  child  is  thereupon  deemed  for  all  purposes  legiti- 
mate from  the  time  of  its  birth.  The  foregoing  provisions  of  this  chapter  do 
not  appl}-  to  such  an  adoption. 


TITLE    III. 

5236.  Guardian,  what. 

Sec.  236.  A  guardian  is  a  person  appointed  to  take  care  of  the  person  or 
property  of  another. 

5237.  Ward,  what. 

Si;c.  2ii7.  The   j)erson  over  whom   or   over  whose   property  a  guardian  is 
appointed,  is  called  his  ward. 

5238.  Kinds  (f  guardians. 

Sec.  238.  Guardians  are  either: 

1.  General;  or, 

2.  Sj.ecial. 

(/I)  OrijflnnlfWfrtlon:  tlie  cIiiM  Khnllbf)  n(lf)ptfd,  nnd  treated  in   all  respects 

Hkc.  •j'iO.  Tin-  pfiDioii  HdoptliiK  a  "hllil,  an<l  tlir-  rljlld  as  liisowii  lawful  child  Bliould  b(^  treated, 

adopted,  mid  tli<- iiUii-r  pcrhuiiH  whose  cniiwiit  JK  iieies-  {h)  The  original  section,  instead  of  "  may  take  the 

Bary,  must  appear  before  tin- county  jiiil«e  of  the  coniiiy  family  name  of  the  person  adopting.     After  adoption 

where  the  persou  adoptinn  n  sid  s,  and  the  uecessury  the  two  sliall."  liad  the  words  "  takes  the  name  of  the 

eons«nt  nnist  thereiii»<>ii  be  higned,  and  an  agreement  person  adopting,  and  the  two  thenceforth." 
be  executed  by  the  l>erHuu  aUox>tiug,  to  the  elTect  that 

GUO 


GUAEDIAN  AND  WARD.  5239-524G 

5239.  General  guardian,  what. 

Sec.  239.  A  general  guardian  is  a  guardian  of  the  person  or  of  all  tlie  prop- 
erty of  tlie  ward  within  this  state,  or  of  both. 

5240.  Special  guardian,  ivhat. 

Sec,  240.  Every  other  is  a  special  guardian. 

5241.  Appointment  of  guardian  by  will  or  by  deed. 

Sec.  241.  A  guardian  of  the  person  or  estate,  or  of  both,  of  a  child  born,  or 
likely  to  be  born,  may  be  appointed  by  will  or  by  deed,  to  take  eli'ect  upon  the 
death  of  the  jiarent  appointing: 

1.  If  the  child  be  legitimate,  by  the  father,  with  the  written  cousent  of  the 
mother;  or  by  either  parent,  if  the  other  be  dead  or  incapable  of  consent; 

2,  If  the  child  be  illegitimate,  by  the  mother.  [Ammdmenf,  approved  March 
30,  1874;  Amendments  1873-4,  195;  took  effect  July  1,  1874.^"' 

b^A'2..  No  person  guardian  of  estate  ivithout  ap>pointment. 

Sec  242.  No  person,  whether  a  parent  or  otherwise,  has  any  power  as 
guardian  of  property,  except  by  appointment  as  hereinafter  provided. 

5243.  Appointment  by  court. 

Sec.  243.  A  guardian  of  the  person  or  property,  or  both,  of  a  person  residing 
in  this  state,  who  is  a  minor,  or  of  unsound  mind,  may  be  appointed  in  all  cases, 
other  than  those  named  in  section  two  hundred  and  forty-one,  by  the  probate 
court,  as  provided  in  the  Code  of  Civil  Procedure.  [Amendment,  approved  March 
30,  1874;  Amendments  1873-4, 196;  took  effect  July  1,  1874.^''' 

5244.  Same. 

Sec  244.  A  guardian  of  the  property  within  this  state  of  a  person  not  resid- 
ing therein,  who  is  a  minor,  or  of  unsound  mind,  may  be  appointed  by  the 
probate  court, 

5245.  Jurisdiction. 

Sec  245.  In  all  cases  the  court  making  the  appointment  of  a  guardian  has 
exclusive  jurisdiction  to  control  him. 

5246.  Rules  for  aioarding  custody  of  minor. 

Sec  246.  In  awarding  the  custody  of  a  minor,  or  in  appointing  a  general 
guardian,  the  court  or  officer  is  to  be  guided  by  the  following  considerations: 

1.  By  what  appears  to  be  for  the  best  interest  of  the  child  in  respect  t©  its 
temporal  and  its  mental  and  moral  welfare;  and  if  the  child  be  of  a  sufficient 
age  to  form  an  intelligent  preference,  the  court  may  consider  that  preference  in 
determining  the  question. 

2.  As'  between  parents  adversely  claiming  the  custody  or  guardianship, 
neither  parent  is  entitled  to  it  as  of  right;  but,  other  things  being  equal,  if  the 
child  be  of  tender  years,  it  should  be  given  to  the  mother;  if  it  be  of  an  age  to 
require  education  and  preparation  for  labor  and  business,  then  to  the  father. 

3.  Of  two  persons  equally  entitled  to  the  custody  in  other  respects,  preference 
is  to  be  given  as  follows: 

1.  To  a  parent; 

2.  To  one  who  was  indicated  by  the  wishes  of  a  deceased  parent; 

3.  To  one  who  already  stands  in  the  position  of  a  trustee  of  a  fund  to  be 
applied  to  the  child's  support; 

4.  To  a  relative.     [Amendment,  approved  March  30, 1874;  Amendments  18  r  3-4, 

196;  took  effect  July  1,  1874.<'=' 


(a)  The  original  section  did  not  have  the  words  "  or  M)J^J^^T^\  T^.^^^  '^tJ:^^^ 

"S?The"oSn:;   section   did  not  have  the  words  ...  "instead  of-.-:."  and  in  addition  had '•  5    Tooneo, 

"  other  th,m  those  named  in  section  two  hundred  and  good  moral  character, 
forty-one." 

601 


5247-5255  CIYIL  CODE. 

5247.  Foicers  of  guardian  aiipointed  by  court. 

Sec.  247.  A  guardiau  aiDpointed  by  a  court  bus  power  over  the  person  and 
projierty  of  tlie  ward,  unless  otherwise  ordered. 

5248.  Duties  of  guardian  of  the  person. 

Sec.  248.  A  guardian  of  the  person  is  charged  with  the  custody  of  the  ward, 
and  must  look  to  his  sui)poi  t,  health,  and  education.  He  may  fix  the  residence 
of  the  ward  at  auy  place  within  the  state,  Lut  not  elsewhere,  without  permission 
of  the  coiut. 

5249.  Duties  of  guardian  of  estate. 

Sec.  249.  A  guardian  of  the  property  must  keep  safely  the  property  of  his 
wai'd.  He  must  not  peiTait  any  unnecessary  waste  or  destruction  of  the  real 
property,  nor  make  any  sale  of  such  propert}'  without  the  order  of  the  probate 
court,  but  must,  so  far  as  it  is  in  the  power,  maintain  the  same,  with  its  build- 
ings and  apimrtenances,  out  of  the  income  or  other  proj^ert}'  of  the  estate,  and 
deliver  it  to  the  ward,  at  the  close  of  his  guardianship,  in  as  good  condition  as 
he  received  it.  [Amendment,  approved  March  30,  1874;  Amendments  1873-4, 
197;  took  effect  Juhj  1,  1874.<''> 

5250.  Relation  confidential. 

Sec.  250.  The  relation  of  guardian  and  ward  is  confidential,  and  is  subject  to 
the  i^rovisions  of  the  title  on  trust. 

5251.  Guardian  under  direction  of  court. 

Sec  251.  In  the  management  and  disposition  of  the  person  or  j^ropert}^  com- 
mitted to  him,  a  guardian  may  be  regulated  and  controlled  by  the  court. 

5252.  Death  of  a  joint  guardian. 

Sec  252.  On  the  death  of  one  of  two  or  more  joint  guardians,  the  power 
continues  to  the  survivor  until  a  further  ajDjDointment  is  made  by  the  court. 

5253.  liemoval  of  guardian. 

Sec  253.  A  guardian  may  be  removed  by  the  probate  court  for  any  of  the 
following  causes: 

1.  For  abuse  of  his  trust; 

2.  For  continued  failure  to  perform  its  duties; 

3.  For  incapacity  to  perfoiin  its  duties; 

4.  For  gross  immorality; 

5.  For  having  an  interest  adverse  to  the  faithful  performance  of  Ids  duties; 

6.  For  removal  from  the  state; 

7.  In  the  case  of  a  guardian  of  the  property,  for  insolvency;  or, 

8.  When  it  is  no  longer  jjroper  that  the  ward  should  be  under  guardianship. 

5254.  Guardian  appointed  by  parent,  Juno  superseded. 

Sec  254.  The  power  of  a  guardian  appointed  by  a  parent  is  superseded: 

1.  By  his  removal,  as  provided  by  section  253; 

2.  By  the  solemnized  marriage  of  the  ward;  or, 

3.  By  the  ward's  attaining  majority. 

5255.  Guardian  appointed  by  court,  how  suspended. 

Sec  255.  The  j)ower  of  a  guardian  appointed  by  a  court  is  suspended  only: 

1.  By  order  of  tlie  court;  or, 

2.  If  tlie  api)ointiiient  was  made  solely  because  of  the  ward's  minority,  by 
his  attaining  majority;  or, 

(a)  Orl«ina)  wctloii:  nanct*,  out  of  the  moneys  of  the  oetate,  and  delivertho 

bEC.  J4U.  A  Kuardinn  of  th<-  i.r..r"rty  luwt  kfcpKafely  Baiiie  to  the  ward,  at  the  close  of  his  KUiirdiaDsliii).  iu 

the  property  of  IiIh  ward.     He  inuht  not  t-uflVr  iiiiy  sale,  as  Kood  condition  as  he  received  them,  inevitable  de- 

w«>it»-,  or  d<-Btni<tir)n  of  the  real   i.ro|)frty.  but  must  car  and  injury  only  excepted. 
niAiutaln  tho  iuberitAUce,  Itn  buildiugs  and  ai>purte- 

G02 


MASTEE  AND  SERVANT.  5255-52C6 

3.  The  guardiansliip  over  the  person  of  the  ward,  by  tlie  niarria^^'c  of  the 
ward.  [Amendment,  approved  March  30,  1874;  Amendments  1873-4,  197;  tuuk 
effect  July  1,  1874. '""> 

5256.  IMease  by  ward. 

Sec.  25G.  After  a  ward  has  come  to  his  majority,  he  may  settle  accounts  with 
his  guardian,  and  give  him  a  release,  which  is  valid  if  obtained  fairly  and  with- 
out undue  influence. 

5257.  Guardian's  discharge. 

Sec.  257.  A  guardian  ajipointed  by  a  court  is  not  entitled  to  his  discharge 
until  one  year  after  the  ward's  majority. 

5258.  Insane  persons.  . 

Sec.  258.  A  person  of  unsound  mind  may  be  placed  in  an  asylum  for  such 
persons,  ujjon  the  order  of  the  county  judge  of  the  county  in  which  he  resides, 
as  follows: 

1.  The  judge  must  be  satisfied,  by  the  oath  of  two  reputable  physicians,  that 
such  person  is  of  unsound  mind,  and  unfit  to  be  at  large; 

2.  Before  granting  the  order  the  judge  must  examine  the  person  himself,  or 
if  that  is  impracticable,  cause  him  to  be  examined  by  an  impartial  person; 

3.  After  the  order  is  granted,  the  person  alleged  to  be  of  unsound  mind,  his 
or  her  husband  or  wife,  or  relative  to  the  third  degree,  may  demand  an  investi- 
gation before  a  jury,  which  must  be  conducted  in  all  respects  as  under  an  inqui- 
sition of  lunacy. 

TITLE  IV. 

master  anh  Scruant. 

5264.  3Iinors  may  ap2:>rentice  themselves. 

Sec.  264.  Every  minor,  with  the  consent  of  the  persons  or  officers  herein- 
after mentioned,  may,  of  his  own  free  will,  bind  himself,  in  writing,  to  serve  as 
clerk,  ajDprentice,  or  servant,  in  any  profession,  trade,  or  employment,  during- 
his  minority;  and  such  binding  shall  be  as  valid  and  effectual  as  if  such  minor 
was  of  full  age  at  the  time  of  making  the  engagement. 

5265.  Consent  of  p)arents,  etc.,  requidte. 
Sec.  265.   Such  consent  shall  be  given: 

1.  By  the  father  of  the  minor.  If  he  be  dead,  or  be  not  of  legal  capacity  to 
give  his  consent,  or  if  he  shall  have  abandoned  or  neglected  to  provide  for  his 
family,  and  such  fact  be  certified  by  a  justice  of  the  peace  of  the  township  or 
county,  or  sworn  to  by  a  credible  witness,  and  such  certificate  or  affidavit  bo 
indorsed  on  the  indenture,  then: 

2.  By  the  mother.  If  the  mother  be  dead,  or  be  not  of  legal  capacity  to 
give  such  consent  or  refusal,  then: 

3.  By  the  guardian  of  such  infant.  If  such  infant  have  no  parent  living,  or 
none  in  a  legal  capacity  to  give  consent,  and  there  be  no  guardian,  then: 

4.  By  the  supervisors  of  the  county,  or  any  two  justices  of  the  peace,  or  the 
judge  of  the  probate  court  of  the  county; 

5.  If  such  minor  be  an  orphan,  under  the  care  and  control  of  any  orphan 
asylum  in  this  state,  then  by  the  board  of  managers  thereof. 

5266.  Written  consent. 

Sec  266.  Such  consent  shall  be  signified  in  writing  by  the  person  entitled  to 
give  the  same,  by  certificate  at  the  end  of,  or  indorsed  upon  the  indentures. 

(a)  The  original  section,  instead  of  "  suspended."  had  the  word  "  superseded."  It  did  not  have  the  third  sub- 
division. 

603 


5267-5276  CH^IL  CODE. 

5267.  Executors  may  bind. 

Sec.  2G7.  The  executors  of  any  last  will  of  a  parent,  who  shall  be  directed  in 
such  will  to  bring  up  bis  or  her  child  to  some  trade  or  calling,  may  bind  such 
child  to  ser^-ice  as  a  clerk,  or  apj)rentice,  in  like  manner  as  the  father  might 
have  done  if  living.  If  there  is  a  surviving  mother,  her  consent  also  is  neces- 
sary. 

5268.  Sicperinsors  may  bind  out. 

Slc.  2G8.  The  supen-isors  of  the  county  may  bind  out  minors  who  are  or 
shall  become  chargeable  to  such  county,  to  be  clerks,  apprentices,  or  servants, 
-which  binding  shall  be  as  effectual  as  if  such  minors  had  bound  themselves  with 
the  consent  of  their  father, 

5269.  Toxon  officers. 

Sec  269.  In  eveiy  town  or  city  the  presiding  officer  of  the  first  council  or 
legislative  board  thereof,  if  there  be  more  than  one,  or  any  public  officer  or 
officers  apiDointed  to  provide  for  the  poor,  may  in  like  manner  bind  out  any 
child  who,  or  whose  parents  are,  chargeable  to  any  such  town  or  cit}'. 

5270.  Age  of  apprentice  to  be  inserted  in  indentures. 

Sec  270.  The  age  of  every  infant  so  bound  shall  be  inserted  in  the  inden- 
tures, and  shall  be  taken  to  be  the  true  age;  and  whenever  public  officers  are 
authorized  to  execute  any  indentures,  or  their  consent  is  required  to  the  validity 
of  the  sajue,  it  shall  be  their  duty  to  inform  themselves  fully  of  the  infant's  age. 

5271.  Indentures,  conditions  in. 

Sec.  271.  Ever}'  sum  of  money  paid  or  agreed  for,  with  or  in  relation  to  the 
binding  out  of  any  clerk,  ajoprentice,  or  servant,  shall  be  inserted  in  the  inden- 
tures. 

5272.  Same. 

Sec  272.  The  indenture  shall  also  contain  an  agreement,  on  the  j)art  of  the 
person  to  whom  such  child  shall  be  bound,  that  he  will  cause  such  child  to  be 
insti'ucted  to  read  and  write,  and  to  be  taught  the  general  rules  of  arithmetic, 
or,  in  lieu  thereof,  that  he  will  send  such  child  to  school  three  months  of 
each  year  of  the  period  of  indenture. 

5273.  Deposit  of  indentures. 

Sec  273.  The  counterjoart  of  any  indenture  executed  by  any  county,  or  citj^ 
or  town  officers,  must  be  by  them  deposited  in  the  office  of  the  clerk  of  the 
count}'  court. 

5274.  Alien  minors. 

Si.o.  274.  Any  minor,  capable  of  becoming  a  citizen  of  this  state,  coming 
from  any  other  country,  state,  or  territory,  may  bind  himself  to  service  until 
his  majority,  or  for  any  shorter  term.  Such  contract,  if  made  for  the  purpose 
of  raising  money  to  pay  his  passage,  or  for  the  jDayment  of  such  passage,  may 
be  for  the  term  of  one  year,  although  such  tenn  may  extend  beyond  the  time 
when  such  person  will  be  of  full  age,  but  it  shall  in  no  case  be  for  a  longer 
term. 

5275.  Contract  under  preceding  section  to  be  acknowledged. 

Sfx;.  27.5.  No  contract  made  under  the  preceding  section  shall  bind  the  ser- 
vant, unless  duly  acknowledged  l)y  the  minor,  before  some  imblic  magistrate  or 
other  officer  authorized  to  administer  oaths,  nor  unless  a  certificate,  showing 
that  tlic  same  was  made  freely,  on  private  examination,  be  indorsed  upon  the 
contract. 

5276.  Causes  for  annulliiig  indentures. 

Sec.  276.   Such  indentures  of  apprenticeship  may  be  annulled  for: 

6U4 


MASTER  AND  SERVANT.  627G 

1.  Fraud  in  the  contract  of  inJeuture; 

2.  When  such  contract  is  not  made  or  executed  in  accordance  "witli  the  pro- 
visions of  this  title; 

3.  For  willful  non-fulfillment,  by  such  master,  of  the  provisions  of  such 
indenture; 

4.  Cruelty  or  maltreatment  of  such  apprentice  by  the  master.  In  such  case, 
the  apprentice  may  recover  for  his  services. 

An  Act  relative  to  apprentices  and  masters. 

Approved  April  3,  1870;  1875-6,  842. 

3Iinors  may  be  apprenticed. 

Section  1.  All  minors,  at  the  age  of  fourteen  years,  may  be  bound  by  cove- 
nant or  indenture,  in  conformity  with  the  stipulations  herein  specified,  to  any 
mechanical  trade  or  aii,  or  the  occupation  of  farming,  as  apprentices;  males  to 
the  age  of  twenty-one  years,  and  females  to  the  age  of  eighteen. 
By  vjhom. 

Sec.  2.  Minors,  at  or  above  the  age  of  fourteen  years,  may  be  bound  by  the 
father,  or,  in  case  of  his  death,  incomjietency,  or  where  he  shall  have  willfully 
abandoned  his  family  for  one  year  without  making  suitable  provision  for  their 
support,  or  has  become  an  habitual  drunkard,  vagi-ant,  etc.,  then  by  their 
mother,  or  by  their  legal  guardian;  and  if  illegitimate,  they  may  be  bound  by 
their  mother;  and  if  they  have  no  parent  competent  to  act,  and  no  guardian, 
they  may  bind  themselves,  with  the  apj)robation  of  the  county  court  of  the 
county  where  they  reside;  but  the  power  of  a  mother  to  bind  her  children, 
whether  legitimate  or  illegitimate,  shall  cease  upon  her  subsequent  marriage, 
and  shall  not  be  exercised  by  herself  or  her  husband,  at  any  time  during  her 
marriage,  without  the  approval  of  the  county  court  of  the  county  wherein  she 
or  he  resides. 

Comment  of  minor  necessary. 

Sec.  3.  In  all  cases  the  consent  of  the  minor,  personally,  is  required  as  a 
party  to  the  covenant,  and  should  be  so  expressed  in  the  indenture,  and  testified 
by  his  or  her  signing  the  same. 

Indentures. 

Sec.  4.  Indentures  shal.1  be  signed,  sealed,  and  delivered  in  duphcate  copies, 
in  the  presence  of  all  the  parties  concerned;  and  when  made  with  the  appro- 
bation of  the  county  court,  or  the  judge  thereof  in  vacation,  such  approbation 
shall  be  certified  in  writing,  indorsed  upon  each  copy  of  the  indenture.  One 
copy  of  the  indenture  shall  be  kept  for  the  use  of  the  minor  by  his  parent  or 
guardian  (when  executed  by  them  respectively);  but  when  made  with  the  ap- 
probation of  the  county  court,  it  shall  be  deposited  in  the  safe-keeping  of  the 
clerk  of  said  court,  for  the  use  of  the  minor.  The  other  copy  shall  l)e  held  by 
the  master,  and  delivered  up  by  him  to  the  apprentice  at  the  expiration  of  his 
term  of  service. 

Same. 

Sec  5.  No  indenture  of  apprentice,  made  in  pursuance  of  this  act,  shallbind 
the  minor  after  the  death  of  his  master,  but  the  apprenticeship  shall  be  thence- 
forth discharged,  and  the  minor  may  be  bound  out  anew. 

Same. 

Sec.  6.  Facts  of  incapacity,  desertion,  drunkenness,  vagrancy,  etc.,  shall  be 
decided  in  the  county  court  by  a  jury  before  the  indenture  shall  take  effect,  and 
an  indorsement  on  the  indenture,  under  seal  of  the  court,  that  the  charge  or 
charges  are  proved,  shall  be  sufficient  evidence  of  the  mother's  power  to  give 
such  consent;  but  if  the  jury  do  not  find  the  charge  or  charges  to  be  true,  the 

605 


5276  CIVIL  CODE. 

person  at  whose  instance  such  proceedings  may  have  been  had  shall  pay  all  costs 
atteudiug  the  same. 

Executor  may  bind. 

Sec.  7.  Tlie  executor,  who  by  the  will  of  a  father  is  directed  to  bring  up  his 
chikl  to  a  trade  or  calHng,  shall  have  power  to  bind  such  by  indenture  in  like 
manner  as  the  father,  if  living,  might  have  done. 
County  court  may  hind. 

Sec.  8.  When  any  minor  who  is  poor,  homeless,  chargeable  to  the  county,  or 
an  outcast,  has  no  visible  means  of  obtaining  an  honest  liveliliood,  it  shall  be 
lawful  for  the  county  court  to  bind  such  apprentice  until,  if  a  male,  he  arrives 
at  the  age  of  twenty-one;  and  if  a  female,  to  the  age  of  eighteen. 
Obligations  of  masters. 

Sec  9.  It  shall  be  unlawful  for  any  master  to  remove  an  apprentice  out  of 
this  state;  and  in  all  indentures  by  the  county  court  for  binding  out  any  orphan 
or  homeless  minor  as  an  apprentice,  there  shall  be  inserted,  among  other  cove- 
nants, a  clause  to  the  following  effect:  That  the  master  to  whom  such  minor 
shall  be  bound,  shall  cause  the  same  to  be  taught  to  read  and  write,  and  the 
ground  rules  of  arithmetic,  the  compound  rules,  and  the  ratio  and  proportion, 
and  shall  give  him  requisite  instruction  in  the  different  branches  of  his  trade  or 
calling;  and  at  the  expiration  of  his  term  of  service  shall  give  him  two  full  new 
suits  of  clothes,  and  the  sum  of  fift}'  dollars,  gold;  and  if  a  female,  she  shall 
receive  two  fine  new  suits  of  clothes,  and  the  sum  of  fifty  dollars,  gold;  the  two 
new  suits,  in  either  case,  to  be  worth  at  least  sixty  dollars,  gold. 

Money  cot isidei'at ions  and  clothes  the  property  of  apprentice. 

Sec.  10.  All  considerations  of  money  or  clothes  paid  or  allowed  by  the 
master,  in  conformity  with  the  foregoing  section,  are  the  sole  property  of  the 
apprentice,  and  to  whom  the  master  is  accountable  for  the  same,  and  he  shall 
pay  or  donate  into  the  hand  of  the  apprentice  alone. 

Treatment  of  apprentices. 

Sec.  11.  Parents  and  guardians  and  the  couuty  court  shall,  from  time  to 
time,  inquire  into  the  treatment  of  the  children  bound  by  them,  respectively, 
or  with  their  approbation;  and  the  judges  of  the  county  court  shall  be  respon- 
sible for  the  charge  of  indentured  ai^preutices  bound  by  the  approbation  of 
their  predecessors  in  office,  and  defend  them  from  all  cruelty,  neglect,  breach 
of  contract,  or  misconduct  on  the  part  of  their  masters. 
Aye  to  he  stated. 

Sec  12.  The  age  of  everj'  apprentice  shall  be  inserted  in  the  indenture;  and 
all  indentures  entered  into  otherwise  than  as  is  herein  provided,  shall  be,  as  to 
all  ajiprentices  under  age,  utterly  void. 
County  court  to  hear  complaints. 

Sec  1*5.  The  county  court  shall  hear  the  complaints  of  apprentices  who  reside 
•witliin  the  county,  against  their  masters,  alleging  undeserved  or  immoderate 
correction,  insuflicient  allowance  of  food,  raiment,  or  lodging,  want  of  instruc- 
tion in  the  different  branches  of  their  trade  or  calling,  or  that  they  are  in  danger 
of  being  removed  out  of  the  state,  or  any  violation  of  the  indenture  of  appren- 
ticeship; and  tlie  court  may  hear  and  determine  sii^h  cases,  and  make  such 
order  therein  as  will  relieve  the  party  injured  in  future. 

Court  may  discharge  apprentice. 

Sec  14.  The  county  court  shall  have  power,  where  circumstances  require  it, 
to  discliurge  an  apprentice  from  his  apprenticeship,  and  in  case  any  money  or 
other  thing  has  been  paid,  or  contracted  to  be  paid  by  either  party,  in  relation  to 
such  apprenticcf^hii),  the  court  shall  make  such  order  concerning  the  same  as 

GOO 


MASTER  AND  SERVANT.  5270 

shall  seem  just  and  reasonable.     If  the  apprentice  so  cUsehrtrf^ed  shall  have 
been  originally  bound  by  the  county  court,  it  shall  be  the  duty  of  tlie  co\irt, 
if  found  necessary,  again  to  bind  such  apprentice,  if  under  age. 
Liability  of  master. 

Sec.  15.  Every  master  shall  be  liable  to  an  action  on  the  indenture  for  the 
breach  of  any  covenant  on  his  part  therein  contained;  and  all  damages  recov- 
ered in  such  action,  after  deducting  the  necessary  charges  in  prosecuting  the 
same,  shall  be  the  property  of  the  minor,  and  shall  be  applied  and  appropri- 
ated to  his  use  by  the  person  who  shall  recover  the  same,  and  shall  be  paid  to 
the  minor,  if  a  male,  at  the  age  of  twenty-one  years,  and  if  a  female,  at  the  age 
of  eighteen  years.  If  such  action  is  not  brought  during  the  minority  of  such  ap- 
prentice, it  may  be  commenced  in  his  own  name  at  any  time  within  six  months 
after  coming  of  age,  but  not  later  than  two  years. 
Action  against  apprentice  for  neglect,  misdemeanor,  etc. 

Sec.  16.  An  apprentice  Avho  shall  be  guilty  of  any  gross  misbehavior,  or  re- 
fusal to  do  his  duty,  or  willful  neglect  thereof,  shall  render  hiniself  liable  to 
the  complaint  of  the  master  in  the  county  court  of  the  county  wherein  he  re- 
sides, which  complaint  shall  set  forth  the  circumstances  of  the  case;  and  to  said 
complaint  shall  be  attached  a  citation,  signed  b}'  the  clerk  in  said  court,  requir- 
ing the  apprentice  and  all  persons  who  have  covenanted  in  his  behalf,  to 
appear  and  answer  to  such  complaint,  which  complaint  and  citation  shall  be 
served  on  them  in  the  usual  manner  of  serving  civil  process. 
Court  may  dissolve  apprenticeship. 

Sec.  17.  The  court  shall  proceed  to  hear  and  determine  the  cause,  and  after 
a  full  hearing  of  the  parties,  or  if  the  adverse  party  shall  neglect  to  appear 
after  due  notice,  the  coui-t  may  render  judgment  or  decree  that  the  master  be 
discharged  from  the  contract  of  apprenticeship,  and  for  the  costs  of.  suit;  srvch 
costs  to  be  recovered  of  the  parent  or  guardian  of  the  minor,  if  there  be  any 
who  signed  the  indenture,  and  execution  therefor  issued  accordingly;  and  if 
there  be  no  parent  or  guardian  liable  for  such  costs,  execution  may  be  issued 
therefor  against  the  minor,  or  the  amount  thereof  may  be  recovered  in  an  action 
against  him  after  he  shall  arrive  at  full  age. 
Liability  of  parties  to  indenture. 

Sec.  18.  The  parties  to  an  indenture  shall  also  be  liable  to  the  master  in  an 
action  on  the  indenture,  for  the  breach  of  any  covenant  on  their  part  therein 
contained,  committed  before  the  master  was  so  discharged  from  such  indenture. 

Misdemeanor. 

Sec.  19.  It  shall  be  unlawful  for  any  person  to  entice,  counsel,  or  persuade 
to  run  away  any  apprentice,  or  employ,  harbor,  or  conceal  such,  knowing  said 
apprentice  to  be  a  runaway;  and  the  parties  so  offending  shall  be  guilty  of  a 
misdemeanor,  and  be  subject  to  fine  of  not  less  than  fifty  and  not  mure  than 
one  hundred  dollars,  to  be  recovered  by  the  master  in  any  court  having  juris- 
diction thereof. 
Wlten  master  removes  from  this  state. 

Sec  20.  Whenever  any  master  of  an  apprentice  shall  wish  to  remove  out  of 
this  state,  or  to  quit  his  trade  or  business,  he  shall  appear  with  his  apju-entiee 
before  the  county  court  of  the  proper  county,  and  if  the  court  be  satisfied  that 
the  master  has  done  justice  to  the  said  apprentice,  for  the  time  he  has  had 
charge  of  the  same,  such  court  shall  have  power  to  discharge  such  apprentice 
from  the  service  of  such  master,  and  again  bind  him,  if  necessary,  to  some 
other  jDerson. 

Sec  21.  All  acts  and  parts  of  acts  in  conflict  with  the  provisions  of  this  act 

are  "hereby  repealed. 

Sec  22.  This  act  shall  take  effect  and  be  in  force  from  and  after  its  passage. 

607 


0283-52S4  CH'IL  CODE. 

F^HT    IV. 

COEPOEATIONS. 

Title  I.  General  Provisions  Applicable  to  all  Corporations...  5283 

II.  Insurance  Corporations 5414 

III.  Eailroad  Corporations 5454 

IV.  Street  Railroad  Corporations 5497 

V.  Wagon  Eoad  Corporations 5512 

VI.  Bridge,  Ferry,  Wharf,  Chute,  and  Pier  Corporations  5528 

VII.  Telegraph  Corporations 5536 

\ill.  Water  and  Canal  Corporations 5548 

IX.  Homestead  Corporations 5557 

X.  Sayings  and  Loan  Corporations 5571 

XI.  Mining  Corporations 5584 

XII.  Eeligious,  Social  and  Benevolent  Corporations 5593 

XIII.  Cemetery  Corporations 5608 

XIV.  Agricultural  Fair  Corporations 5620 

XV.  Gas  Corporations 5628 

XVI.  Land  and  Building  Corporations 5639 


TITLE   I. 

(Ccncral  ProubioHO  opijlicable  to  all  (Torpomtion^. 

Chapter  I.  Formation  of  CoKPOR.vnoxs 5283 

II.  CoRPOR.\TE  Stock 5322 

III.  Corporate  Powers 5354 

IV.  Extension  and  Dissolution  of  Corporations 5399 

CHAPTEE  L 

formation  of  corporations. 

AnncLK  I.   CoRpoKATioNS  Definkd  and  how  Oeoanized 5283 

II.    ]iY-LAWS,    DiKKCTOJiS,    ElKCTIONS,    AND    MEETINGS 5301 

ARTICLE  I. 

corporations  defined  and  how  organized. 

5283.  (^'orporalion  drfmed. 

Sec.  2H:}.  A  corporation  is  a  creahire  of  the  law,  having  certain  powers  and 
duties  of  a  natural  person.  Being  created  by  the  law,  it  may  continue  for  any 
length  of  time  which  the  law  prescribes. 

5284.  Cor] /oral ions,  j/nJilic  and  private  distinguished. 

Sec.  284.  Corporations  are  either  public  or  private.  Public  corporations  are 
formed  or  oi'ganized  for  the  government  of  a  portion  of  the  state;  all  other  cor- 
jjorations  are  private.  \ Amendment,  approved  3Iarch  30,  1874;  Amendments 
1873-4,  197;  took  ej/l'cl  July  1,  1874.^"' 

(a)  The  original  spctlon,  InFtoad  of  "  b11  olhor  cor-  tions  arc  formed  for  the  purpose  of  religion,  benevo- 
poratlone  are  private,"  bad  the  wordb  "  jirl  vute  corpora-     leuce,  education,  art,  literature  or  profit," 

G08 


CORPORATIONS— GENERAL  PROVISIONS.         5285-52S8 

5285.  Private  corporation!^,  hoio  formed. 

Sec.  285.  Private  corporations  may  be  formed  by  the  vohuitary  association 
of  any  five  or  more  persons,  in  the  manner  prescribed  in  this  article.  A  major- 
ity of  such  persons  must  be  residents  of  this  state.  [Amendment,  approved  March 
30,  1874;  Amendments  1873-4,  197;  took  ejj'ccl  July  1,  1874."" 

5286.  Corporations  may  be  formed  for  any  lanful  purpose. 

Sec.  286.  Private  corj)orations  may  be  formed  for  any  purpose  for  uhidi  in- 
dividuals may  lawfully  associate  themselves.  [Amendment,  approred  Marvh  30, 
1874;  Amendments  1873-4,  198;  took  ej/'ect  July  1,  1874.'''> 

5287.  Continuance  of  existence  un  der  j^rovisions  of  code. 

Sec.  287.  Any  corporation  existing  on  the  first  day  of  Januaiy,  one  thousand 
eight  hundred  and  seventy-three,  formed  under  the  laws  of  this  state,  and  still 
existing,  which  has  not  already  elected  to  continue  its  existence,  under  the  j^ro- 
visions  of  this  code  applicable  thereto,  may,  at  any  time  hereafter,  make  such 
election  by  the  unanimous  vote  of  all  of  its  directors,  or  such  election  may  be 
made  at  any  annual  meeting  of  the  stockholders  or  members,  or  at  any  meeting 
called  by  the  directors  expressly  for  considering  the  subject,  if  voted  by  stock- 
holders representing  a  majority  of  the  capital  stock,  or  by  a  majority  of  the 
members,  or  may  be  made  by  the  directors  upon  the  written  consent  of  that 
number  of  such  stockholders  or  members.  A  certificate  of  the  action  of  the 
directors,  signed  by  them  and  their  secretary,  when  the  election  is  made  by 
their  unanimous  vote,  or  ujion  the  written  consent  of  the  stockholders  or  mem- 
bers, or  a  certificate  of  the  proceedings  of  the  meeting  of  the  stockholders  or 
members,  when  such  election  is  made  at  any  such  meeting,  signed  by  the  chair- 
man and  secretary  of  the  meeting,  and  a  majority  of  the  directors,  must  be  filed 
in  the  office  of  the  clerk  of  the  county  where  the  original  articles  of  corpora- 
tion are  filed,  and  a  certified  copy  thereof  must  be  filed  in  the  office  of  the  sec- 
retary of  state;  and  thereafter  the  corj)oration  shall  continue  its  existence  under 
the  provisions  of  this  code  which  are  ai^plicable  thereto,  and  shall  possess  all 
the  rights  and  powders,  and  be  subject  to  all  1;he  obligations,  restrictions,  and 
limitations  prescribed  thereby.  {Amendment,  approved  March  30, 1874;  Amend- 
ments 1873-4,  198;  took  effect  July  1,  1874.<'=' 

5288.  Existing  corpoi^alions  not  affected. 

Sec.  288.  No  corporation  formed  or  existing  before  twelve  o'clock,  noon,  of 
the  day  upon  which  this  code  takes  effect,  is  affected  by  the  provisions  of  Part 
IV  of  Division  First  of  this  code,  unless  svich  corporation  elects  to  continue  its 
existence  under  it  as  provided  in  section  287;  but  the  laws  under  which  such 
corporations  were  formed  and  exist  are  applicable  to  all  such  corj^orations,  and 
are  repealed,  subject  to  the  provisions  of  this  section. 

{a)  The  original  section  after  "  five  or  more  persons  "  paper  for  two  weeks,  or  a  weekly  newspaper  for  four 

had  the  wordB  "  for  the  purposes  and."     It  had  an  addi-  weeks,  successively,  published  in  the  county  where  the 

tional  clause  at  the  end  as  follows:  principal  place  of  business  of  the  corporation  is.     In 

"Married  women  may  become  corporators,  officers  lieu  of  the  publiciiticm.  personal  notice  may  be  given 

and  members  of  religious,  benevolent,  art,  literary  or  to  each  member  or  stockholder  thereof; 

educational  corporations."  2.  Two  thirds  of  the  members,  if  there  is  no  capit«l 

(b)  The  original  section  provided  that  private  cor-  stock,  and  if  there  is  a  capital  stock,  then  stockholders 
poratiouB  might  be  formed  for  certain  speciticd  pur-  representing  two  thirds  of  it,  must  vote  iu  favor  of 
poses  and  none  other.     It  designated  such  purposes  in  such  continuance; 

twenty-sfevtn  su I  divisions.     They  are  here  omitted  on  3.  A  copy  of  the  proceedings  of  this  meeting  giving 

account  of  their  lergth  the  names  of  all  persons  present,  tlie  votes  tiiken,  the 

(c)  Original  section:  notice  calling  the  met  ting,  and  the  proof  of  its  publi- 
Seo.  28t'.  Any  existing  corporation  formed  under  any  cation  or  service,  all  duly  certitied   by  the  president 

law  of  this  state,  for  any  purpose  designated  in  any  sub-  and  secretary  of  the  corporation,  "'"st  be  filed  iu  the 
division  of  the  precedii-g  section,  may,  at  a  meeting  of  offices  of  the  secretary  of  state  and  clei  k  of  tlie  c<>unty 
its  .-Dembers  or  stockholders,  cal  ed  for  that  purpose,  where  the  articles  of  incorporation  are  on  file  There- 
continue  its  existence,  under  Title  I  of  this  part,  or  un-  after  such  corporation  is  possessed  of  all  the  rights 
der  the  provisions  of  any  subs  quent  title  particularly  and  powers,  and  subject  to  al  the  obligations,  re- 
applicable  thereto,  as  follows:  strictions,  and  limitati.^ns  provided  in  this  part  ap- 
1.  Public  notice  of  such  meeting,  and  of  its  object,  plicable  thereto,  and  its  corporate  existence  is  con- 
must  be  given  by  publishing  the  same  in  a  daily  news-  tinned. 

39  609 


5289-5294  CIYIL  CODE. 

5289.  yame  of  instruvient  creating  corporation. 

Sec.  289.  The  iustruiuent  by  wliicli  a  private  corporation  is  formed  is  called 
"  articles  of  incorporation." 

5290.  Articles  of  incorporation,  what  to  contain. 

Sec.  290.  Ai'ticles  of  incorporation  must  be  prepared,  setting  forth: 

1.  The  name  of  the  corporation; 

2.  The  purpose  for  which  it  is  foi-med; 

3.  The  place  where  its  principal  business  is  to  be  transacted; 

4.  The  term  for  which  it  is. to  exist,  not  exceeding  fifty  years; 

5.  The  number  of  its  directors  or  trustees,  and  the  names  and  residences  of 
those  who  are  apjiointed  for  the  first  year;  provided,  at  any  time  during  the 
existence  of  the  corporation,  the  number  of  the  directors  may  be  increased,  in 
corporations  for  profit,  by  a  majority  of  the  stockholders  of  the  corporation,  to 
any  number  not  exceeding  eleven,  who  must  be  members  of  the  corporation, 
whereupon  a  ceiiificate  stating  the  number  of  directors  must  be  filed  as  pro- 
vided for  in  section  two  hundred  and  ninety-six  for  the  filing  of  the  original 
articles  of  incoi*poration ; 

G.  The  amount  cf  its  cajiital  stock,  and  the  number  of  shares  into  which  it  is 
divided; 

7.  If  there  is  a  capital  stock,  the  amount  actually  subscribed  and  by  whom. 
[Amendment,  approved  April  1,  1876;  Amendments  1875-6,  70;  took  effect  from 
passage. ^"^ 

5291.  Certain  corporations  to  state  further  facts  in  articles. 

Sec.  291.  The  articles  of  incorporation  of  any  railroad,  wagon  road  or  tele- 
graph organization  must  also  state : 

1.  The  kind  of  road  or  telegraph  intended  to  be  constructed; 

2.  The  place  from  and  to  which  it  is  intended  to  be  run,  and  all  the  interme- 
diate branches; 

3.  The  estimated  length  of  the  road  or  telegraph  line; 

4.  That  at  least  ten  per  cent,  of  the  cajiital  stock  subscribed  has  been  paid  in 
to  the  treasurer  of  the  intended  corporation. 

5292.  Articles  to  be  subscribed  and  acknowledged — number  and  qualification  of 

signers. 
Sec.  292.  The  articles  of  incorporation  must  be  subscribed  hy  five  or  more 
persons,  a  majority  of  whom  must  be  residents  of  this  state,  and  acknowledged 
by  each  before  some  officer  authorized  to  take  and  certify'  acknowledgments  of 
conveyances  of  real  property.  [Amendment,  approved  March  30,  1874;  Amend- 
?He7</«\873-4,  199;  took  effect  July  1,  1874.^"' 

5203.   Prerequisite  to  filing  articles. 

Sec.  293.  Eacli  intended  corporation  named  in  section  291,  before  filing  arti- 
cles of  incorporation,  must  have  actually  subscribed  to  its  capital  stock,  for 
each  mile  of  the  coiitenij)lated  work,  the  following  amounts,  to  wit: 

1.  Ojie  thousand  dollars  per  mile  of  railroad; 

2.  One  hundred  dollars  per  mile  of  telegraph  lines; 

3.  Three  hundred  dolhirs  per  mile  of  wagon  roads. 
5294.    Prerequisite  to  filing  articles  of  corporations  for  profit. 

Sfx;.  294.  lioforo  the  articles  of  incorporation  of  any  corporation  referred  to 

(a)  The  original  nertion  did  not  havf  the  proviso  or  names  and  residences  of  such  of  them  who  are  to  serve 

the  Bc<oud  scuteuce  in  tin-  lilth  siil'dlvinion;  in  other  until  the  eli-itlon  of  such  officers  and  tlicir  qualiflca- 

respects  it  was  like  tln'  uiik  ii<tiiic-nt  in  the  text.  tion;  0.  If  there  be  a  capital  stock,  its  aiuouut  and  the 

It  was  provloiiBly  auKiided,  l)y  act  of  .Manh  30, 1874;  number  of  shares  into  which  it  is  di\ided." 
Amciiilnieiits  lt)7:{-t,  I'.t'.t,  so  as  to  have  only  six  subdi-  (b)  Tiie  orit;inal  suction  used  the  word  "  three"  In- 

visiniis.  the  tirst  four  bein^  the  same  as  in  the  original  stead  of  "  a  majority,"  and  the  word  "  grants  "  instead 

and  tlie  lifth  and  i-ixth  as  fallows:  of  "  conveyances." 

"  5.  Till:  niunbor  "f  it*  <liii  i  ti.i"  it  (niktiefi,  and  the 

610 


CORPORATIONS— GENERAL  PROVISIONS.         5294-5299 

in  the  preceding  section  are  filed,  there  must  be  paid  lor  the  benolit  of  the  cor- 
poration, to  a  treasurer  elected  by  the  subscribers,  ten  per  cent,  of  the  amount 
subscribed. 

5295.  Oath  of  officer  to  subscription  of  stock  and  paymoU  of  tni  per  cent. 

Sec.  295.  Before  the  secretary  of  state  issues  to  any  such  corporation  a  cer- 
tificate of  the  filing  of  articles  of  incorporation,  there  must  be  filed  in  his  office 
an  affidavit  of  the  president,  secretary,  or  treasurer  named  in  (he  articles,  that 
the  required  amount  of  the  capital  stock  thereof  has  been  actually  subscribed, 
and  ten  per  cent,  thereof  actually  paid  to  a  treasurer  for  the  benefit  of  the  cor- 
poration. 

5296.  Articles  to  be  filed  icith  countij  clerk  and  secretary  of  state. 

Sec.  29G.  Upon  filing-  the  articles  of  incoi-poration  in  the  office  of  the  county 
clerk  of  the  county- in  which  the  jorincipal  business  of  the  company  is  to  be 
transacted,  and  a  copy  thereof,  certified  by  the  county  clerk,  with  the  secretaiy 
of  state,  and  the  affidavit  mentioned  in  the  last  section,  where  such  affidavit  is 
required,  the  secretary  of  state  must  issue  to  the  corporation,  over  the  great 
seal  of  the  state,  a  certificate  that  a  copy  of  the  articles,  containing  the  required 
statement  of  facts,  has  been  filed  in  his  office;  and  thereupon  the  persons  sign- 
ing the  articles,  and  their  associates  and  successors,  shall  be  a  body  politic  and 
corporate,  by  the  name  stated  in  the  certificate,  and  for  the  term  of  fifty  years, 
unless  it  is  in  the  articles  of  incorporation  otherwise  stated  or  in  this  code 
otherwise  sj)ecially  provided.  [Amendment,  approved  March  30,  1874;  Amend- 
ments 1873-4,  199;  took  effect  July  1,  1874.^''' 

5297.  Certified  copy  of  articles  as  pi' ima  facie  evidence. 

Sec.  297.  A  coj)y  of  any  articles  of  incorporation  filed  in  pursuance  of  this 
chapter,  and  certified  by  the  secretary  of  state,  must  be  received  in  all  the 
courts  and  other  j)laces  as  prima  facie  evidence  of  the  facts  therein  stated. 
{Amendment,  ajyproved  March  30,  1874;  Amendments  1873-4,  200;  took  effect 
July  1,  1874.^^> 

52£8.    Who  are  members  and  who  stockholders  of  corporation. 

Sec.  298.  The  owners  of  shares  in  a  coi'poration  which  has  a  cajjital  stock 
are  called  stockholders.  If  a  corporation  has  no  capital  stock,  the  coiporators 
and  their  successors  are  called  members. 

[Sec.  299  '"'  was  repealed  by  act  aj^proved  March  30,  1874;  Amendments 
1873-4,  200;  took  effect  July  1,  1874.  Afterwards,  a  new  section  299  was 
adopted  and  added  to  the  code,  as  follows:] 

5299.   Coi'poration  to  file  articles  in  county  n-liere  it  holds  property. 

Sec  299.  No  corporation  hereafter  formed  under  the  jnovisions  of  this  chap- 
ter shall  purchase,  locate,  or  hold  property  in  any  county  of  this  state,  without 
filing  a  certified  copy  of  the  certificate  of  its  articles  of  incorporation  in  the 
office  of  the  county  clerk  of  the  county  in  which  such  j^roperty  is  situated, 
within  sixty  daj's  after  such  purchase  or  location  is  made,  and  every  corporation 
now  in  existence  must,  within  ninety  days  after  the  passage  of  this  act,  file  a 
certified  copy  of  the  certificate  of  its  articles  of  incorjioratiou  as  provideil  in 
this  section,  and  a  certified  copy  of  such  copy  shall,  as  evidence,  have  the  same 
force  and  effect  as  a  certified  copy  of  the  original.     Any  corporation  failing  to 

(o)   Orioinal  section:  a  body  politic  and  corporate,  by  tlip  name  stated  in  the 

Sec.  29(i!  Upon  the  tiling  of  the  articles  of  incorpora-  cei-titicate,  aiid  for  the  term  of  lifty  years,  luiliss  it  is 

tion  iu  the  office  of  ihe  county  clerk  of  the  county  in  in  the  articles  of  incorporation  otlierwise  stated,  or  in 

which  the  business  of  the   company  is  to  be  trans-  this  part  otherwise  specially  provided. 

acted,  and  a  copy  thereof  with  the  secretai-y  of  state,  (h)  The  original  section  had  the  word  "  primary  •' 

the  secretary  of  state  must  issue  to  the  corpocation,  instead  of  "  prima  facie." 

over  the  great  seal  of  the  state,  a  certificate  tjat  such  (c)   Hepealed  section: 

articks,  containing  the  required  statement  of  facts,  Sec. 'JUK.  If  a  member  of  a  corporation  dies,  resigns. 

have  been  tiled  in  his  office;  and  thereafter  the  persons  or  is  removed,  a  m  jority  ot  the  remamiug  members 

signing  the  same,  and  their  associates  and  assigns,  are  may  elect  another  in  his  place. 

611 


J  300.     Every  corporation  that  has  been  or  may  be  created 
under  the  general  laws  of  this  State,  doing  a  baniiing  business 
therein,  and  which  has  no  capital  stocic,  may  elect  to  have  a 
capital  stock,  and  may  issue   certificates  of  stock  therefor  in 
the  s;.me  manner  as  corporations  formed  under   the   provisions 
of  Clapter  One,  Article  One,  of  the  Civil  Code,  relating  to  the 
formation  of  corporations ;  pruriJed,  that  no  such  cor[)oration 
shall  ise  or  convert  any  moneys  or  funds  theretofore  belonging 
to  it  o-  under  its  control  into  capital  stock,  but  such   funds  or 
money,  must  beheld  and  managed  oidy  for  the  purposes  and  in 
the  mamer  for  which  they  were  created.  Before  such  change  is 
made,    majority  of  the  members  of  such  corporation  present 
at  a  meting  called  for  the  purpose  of  considering  the  proposi- 
tion wk'ther  it  is  best  to  have  a  capital  stock,  its  amount,  and 
the  nuiber  of  shares  into  whicli  it  shall  be  divided,  must  vote 
in  favo  of  having  a  capital  stock,  fix  the  amount  thereof,  and 
the  uuiber  of  shares  into  which  it  shall  be  divided.     Notice  of 
the  tin>  and  place  of  holding  such  meeting  and  its  object  must 
be  givt  by  the  Tresident  of  such  corporation    by   publication 
in  som.newspaper  printed  and  published  in  the  county,  or  city 
and  eonty,  in  winch  the  principal  place  of  business  of  the  cor- 
poratio  is  situated,  at  least  once  a    week   for  three   successive 
weeks  -ior  to  the  holding  of  the  meeting.     A  copy  of  the  pro- 
ceedin;  of  this  meeting,  giving  the  number  of  persons  present, 
the  vos  taken,  the  notice  calling  the  meeting,  the  proof  of  its 
publicion,  the  amoinit  of  capital  actually  subscribed,  and  by 
whom.ll  duly  certified  by  the  President  and  Secretary  of  the 
eorpotion,  must    be  filed   in  the  offices  of  the  Secretary  of 
State  d  Clerk  of  the  county  where  the  articles  of  incorporation 
are  fiK     Thereafter  such  corporation  is  posses.sed  of  all  the 
rights  id  powers,  and  is  subject  to  all  the  obligations,  restric- 
tions, d  limitations,  as  if  it  had  been  oriiiinally  created    with 
a  capi  stock.     And  provided,  further,  tirat  no   bank   in  this 
State  ill  ever  pay  any  dividend  ujion  so-called  guaranty  notes, 
uor  up  any  stock  except  upon   the  amount  actually  paid  in 
monefltosaid  capital  upon  such  stock,  and  anv  payment  made 
in  violon  of  this  provision  shall  render  all  officers  and  direct- 
ors canting  to  the  same,  jointly  and  severally  liable  to  th 
depos-s  to  the  extent  thereof. 


t  maintain  or  defend  any 
New  section,  approved  April 
usage. 


MEETINGS. 

[tie  must,  witliin  one  montli 
E  by-laws  for  its  goverument 
this  state.  Tlie  assent  of 
scribed  capital  stock,  or  of  a 
ck,  is  necessary  to  adopt  by- 
at  purpose;  and  in  the  event 
blie  same  by  advertisement  in 
\e  principal  place  of  business 
.  therein,  then  in  a  paper  pub- 
rder  of  the  acting-  president, 
f  the  stock,  or  of  two  thirds 
[  be  effectual  to  adopt  a  code 
Amendment,  approved  March 
1,  1874.'''> 

be  elected  annually  by  the 


[In  effect  Mav  _28tji,  1S78.] 
stockholders  or  members,  and  if  no  provision  is  made  in  the  by-laws  for  the 
time  of  election,  the  election  must  be  held  on  the  first  Tuesday  in  June.  Notice 
of  such  election  must  be  giyen,  and  the  right  to  vote  determined  as  prescribed 
in  section  301. 

5303.  By-larcs,  for  v:lmt  may  provide. 

Sec.  303.  A  corporation  may,  by  its  bj'-laws,  where  no  other  jDrovision  is 
specialh'  made,  provide  for: 

1.  The  time,  place,  and  manner  of  calling  and  conducting  its  meetings; 

2.  The  nuujber  of  stockholders  or  members  constituting  a  quorum; 

3.  The  mode  of  voting  by  proxy; 

4.  The  time  of  the  annual  election  for  directors,  and  the  mode  and  manner  of 
giving  notice  thereof; 

').  The  compensation  and  duties  of  officers; 

0.  The  manner  of  election  and  the  tenure  of  office  of  all  officers  other  than 
the  directors;  and 

7.  Suitable  penalties  for  violations  of  by-laws,  not  exceeding,  in  any  case, 
one  hundred  dollars  for  any  one  offense.  [Amendmeiit,  approced  3Iarc}i  30, 
1871;  Awnidnimfs  1873-4,  20;  took  effect  July  2,  1874. <"> 


S»c.  .',01.  Kv<ry  <ori«iratlon  formed  under  this  title 
iiiuht,  fit  a  111!  (fthiK  <il  ItK  Htookholders  or  incnjljirs,  to 
1)1  lifld  within  oin  iii-.ntlj  nfier  tiling  arti'les  of  in- 
i<)ri»>riit)"ii.  ii.lfii-t  a  code  ..f  by-liiwH  for  Its  govf-rn- 
ni«  ul  not  iiiroiinhtciit  with  tbe  •onPlitutiou  and  Iuwh 
of  tliiH  i-ti.tc.     Notlie  of  KiK-l)  nKflliiK.  by  order  of  the 


('>)  Orifednal  section : 

Sec.  3n:j.  A  corponition  may,  by  its  by-laws,  ■whrre 
no  other  provisiou  is  Hiieeiiilly  made,  provide:  1.  The 
time,  place,  and  manner  of  calling  and  couduiting 
their  meetings;  ;•.  The  number  of  fctoililiolders  or 
nieiiiljerB,  or  the  quantity  of  Btock  coi/Btituting  a  quo- 
rnni ;  3.  The  number  of  gliares  which  entitles  the  stock- 


n.tiiig  i.refcideiit,  sperlfylnu  its  "d.ji.t.  iiiunt  be  pub-  holders  respectively  to  one  or  more  votes:  4.  The  mode 
liHh.-,|  two  week)-  In  Konie  newsi.npei-  i.ubliHhed  in  the  of  voting  by  proxy;  5.  The  time  and  place  of  the  an 
county  where  the  meeting  1h  to  be  h<  Id;  or  if  none  l8  .    -       ■    •    ^       ■^ 

I.uldi^bed  111"  rein,  then  In  n  piiiier].ublish<-.l  in  an  ad- 
joining i-ounty.  In  the  adoption  of  the  by-laws,  each 
rtockholder  hns  i.s  loriny  v<  tes  as  he  holils  shiires  of 
htock:  If  tliere  Is  rjo  cai)ifHl  stork,  each  nii  uibrr  has 
one  vote.  A  majority  of  all  the  siibscrlbeil  eaplt.il 
stock,  or  of  the  memberH,  If  there  Is  no  cai>ltal  stock, 
is  oece.sHary  to  adopt  the  by-laws,  or  any  one  ol  them. 


nual  election  for  directors,  and  the  mode  and  manner 
of  giving  notice  thereof;  0.  The  mode  of  selling  shares 
for  the  non-payment  of  assessmeutB  or  installments; 
7.  The  i-onipensatiou  and  <iutie8  of  olficern;  8.  The 
tenureof  office  of  subordinate  officers;  and.  9.  Suitable 
penalties  for  viidations  of  by-laws,  not  exceeding,  in 
any  case,  one  hundred  dollars  for  any  one  offense. 


612 


CORPORATIONS-GENERAL  PROVISIONS.         53UI-o:iUG 

5304.  By-laws  to  be  recorded  m  "Book  of  Bij-laws." 

Sec.  304.  All  by-laws  adopted  must  be  certified  by  a  iniijority  of  tlic  diicct«jiK 
and  secretary  of  the  cori)oraiioii,  and  copied  in  a  legible  liiiud  in  some  book 
kept  in  the  office  of  tlie  corporation,  to  be  known  as  the  "  Book  of  By-laws," 
and  no  by-law  shall  take  effect  until  so  copied,  and  the  book  shall  theu'beoijeu 
to  the  inspection  of  the  public  during  office  hours  of  each  day  except  holidays. 
The  by-laws  may  be  repealed  or  amended,  or  new  by-laws  may  be  adoi)tcd,  at 
the  annual  meeting,  or  at  any  other  meeting  of  the  stockholders  or  nienibcrs 
called  for  that  purpose  by  the  directors,  by  a  vote  representing  two  thirds  of 
the  subscriber's  stock,  or  by  two  thirds  of  the  members,  or  the  power  to  repeal 
and  amend  the  by-laws,  and  adopt  new  by-laws,  may,  by  a  similar  vote  at  any 
such  meeting,  be  delegated  to  the  board  of  du-ectors.  The  power  when  dele- 
gated may  be  revoked  by  a  similar  vote  at  any  regular  meeting  of  the  stock- 
holders or  members.  AVhenever  any  amendment  or  new  by-law  is  adopted,  it 
shall  be  copied  in  the  book  of  by-laws  with  the  original  by-laws,  and  immedi- 
atel}^  after  them,  and  shall  not  take  effect  until  so  copied.  If  any  by-law  lie 
repealed,  the  fact  of  repeal,  with  the  date  of  the  meeting  at  which  the  repeal 
was  enacted  shall  be  stated,  in  the  said  book,  and  until  so  stated,  the  repeal 
shall  not  take  effect.  [Amendment,  cqyproved  Alarch  30,  1874;  Amendments 
1873-4,  201.^=^^ 

5305.  How  many  and.  who  to  be  direetors. 

Sec.  305.  The  corporate  powers,  business,  and  property  of  all  corporations 
formed  under  this  title  must  be  exercised,  conducted  and  controlled  by  a  board 
of  not  less  than  five  nor  more  than  eleven  directors,  to  be  elected  from  among 
the  holders  of  stock;  or  where  there  is  no  capital  stock,  then  from  the  members 
of  such  corporations;  except  that  corporations  formed,  or  to  be  formed,  for  the 
purpose  of  erecting  and  managing  halls  and  buildings  for  the  meetings  and 
accommodation  of  several  lodges  or  societies  of  any  benevolent  or  charitable 
order  or  organization,  and  in  connection  therewith  the  leasing  of  stores  and 
offices  in  such  building  or  buildings  for  other  purposes,  the  corjiorate  jiowers, 
business  and  projDerty  thereof  may  be  conducted,  exercised,  and  controlled  by 
a  board  of  not  less  than  five  nor  more  than  fifty  directors,  to  be  chosen  from 
among  the  stockholders  of  such  cori)oration  or  from  among  the  members  of  such 
order  or  organization.  A  majority  of  the  directors  must  be  in  all  cases  citizens 
of  this  state.  Directors  of  corporations  for  profit  must  be  holders  of  stock 
therein  in  an  amount  to  be  fixed  by  the  by-laws  of  the  corporation.  Directors 
of  all  other  corporations  must  be  members  thereof.  Unless  a  quorum  is  present 
and  acting  no  business  performed  or  act  done  is  valid  as  against  the  corpora- 
tion. Whenever  a  vacancy  occurs  in  the  office  of  director,  unless  the  by-laws 
of  the  corporation  otherwise  provide,  such  vacancy  must  be  filled  by  an  ap- 
pointee of  the  board.  [Ameiidment,  approved  January  20,  1876;  Amendments 
1875-6,  71;  took  effect  from  passage. ^"^ 

5306.  Directors  to  be  elected  at  first  meeting. 

Sec.  306.  At  the  first  meeting  at  which  the  by-laws  are  adopted,  or  at  such 

(a)   Original  section:  erty  of  all  corporalious  fonuc.l  uu.ler  tliif  title  miist  be 

Sec.  3 
the  oflic 


iu  the  : 

pal  phii 

by-laws  thus  adopted  must  not  be  altered  or  ainended,      sueh  loiijoratiou      A  inajoruj-  oi  lu.- «..c.  i...-  .....rw  ..„ 

except  at  a  special  meetiu-  of  the  stockholders  cr     citizeus  of  this  st:tte.  /^'rt^^tore  of  corporations  for 

members,  to  be  called  by  the  directors  for  that  purpose,      profit  must  be  holders  of  stock  therein  in  »"»"'«""'*  »«' 


recorded   in   the   same   manner   as   the   orig ^j        ■  --    -^--  -  .  >,.«;„„  „h,o^«-<q..  ..rr^ 

J  unless  the  by-laws  of  the  corjioratiou  otherwls-  pro- 

{b)   Original  section:  ■^i^l^^-  ^'•"''i  vacancy  must  be  filled  by  an  appointee  of 

Sec.  3u5.  The  corporate  powers,  business,  and  prop-     the  board. 

613 


5306-5310  CIYIi.  CODE. 

subsequent  meeting  as  may  be  tlieu  designated,  directors  must  be  elected,  to 
bold  their  offices  for  one  year,  and  until  their  successors  are  elected  and  quali- 
fied.    [Amendmrid,  approved  March  30,   1874;  Amendmenls  1873-4,   202;  look 
effect  July  1,  1874/"' 
j  307.  All   elections  must  be  by  ballot,  and  every  stock- 
holder shall  have  the  right  to  vote  in  person  or  by  proxv  the  lllf           1          r+         fii 
number  of  shares  standing:  in  liis  name,  as  provided  iu  section  DallOt,  and   a   VOte   OI  StOCK- 
three  hundred  and  twelve  of  this  Code,  for  as  many  persons  as  capital  stock,  or  of  a  majority 
there  are  director8  to  be  eleete.l,  or  to  cumulate  said  shares  and  ^    ^^  capital  stock  in  the  COr- 
give  one  candidate  as  manv  votes  as  the  number  of  directors  ^ 

multiplied  by  the  number  of  his  shares  of  stock  shall  equal,  or  for  each  share  held  by  him  at 

to  distribute  them   on  the  same  principle  among  as  many  can-  er  meetings  of   stockholders, 

didates  as  he  shall  think  fit.     In  corporations  having  no  capital  ,      -i  nr-o    *      on9.    i      h      fF    t 

stock,  each  member  of  the  corporation  may  cast  as  many  votes  entS,    10(0-4:,    L\}A',    tOOlC   effect 
for  one  director  as  there  are  directors  to  be  elected,  or  may  dis- 
tribute the  same  among  any  or  all  of  the  candidates.     In  either 
case,  the  directors  receiving  the  highest  number  of  votes  shall 

be  declared  elected.     [In  ettect,  April  2,  1878.]  ^   directors  must  organize  by 

the  election  of  a  president,  who  must  be  one  of  their  number,  a  secretary',  and 
treasurer.  They  must  perform  the  duties  enjoined  on  them  by  law  and  the 
by-laws  of  the  corporation.  A  majority  of  the  directors  is  a  sufficient  number 
to  form  a  board  for  the  transaction  of  business,  and  every  decision  of  a  ma- 
jority of  the  directors  forming  such  board,  made  when  duly  assembled,  is  valid 
as  a  corporate  act. 

5309.  Dividends  to  he  made  from  su7'plus  profits. 

Sec  309.  The  directors  of  corjDorations  must  not  make  dividends,  excejjt  from 
the  surplus  profits  arising  from  the  business  thereof;  nor  must  they  divide, 
withdraw,  or  pay  to  the  stockholders,  or  any  of  them,  any  Y>^ri  of  the  capital 
stock;  nor  must  they  create  debts  beyond  their  siibscribed  capital  stock,  or 
reduce  or  increase  the  capital  stock,  except  as  hereinafter  si^ecially  provided. 
For  a  violation  of  the  provisions  of  this  section,  the  directors  under  whose 
administration  the  same  may  have  happened  (except  those  who  may  have  caused 
their  dissent  therefrom  to  be  entered  at  large  on  the  minutes  of  the  directors  at 
the  time,  or  Avere  not  present  when  the  same  did  happen),  are,  in  their  indi- 
vidual and  private  capacity,  jointly  and  severally  liable  to  the  cor^Doration,  and 
to  the  creditors  thereof,  in  the  event  of  its  dissolution,  to  the  full  amount  of 
the  capital  stock  so  divided,  withdrawn,  paid  out,  or  reduced,  or  debt  con- 
tracted; and  no  statute  of  limitations  is  a  bar  to  any  suit  against  such  directors 
for  any  sums  for  which  they  are  made  liable  b}'  this  section.  There  may,  how- 
ever, be  a  division  and  distribution  of  the  capital  stock  of  any  corporation  which 
remains  after  the  payment  of  all  its  debts,  upon  its  dissolution,  or  the  expira- 
tion of  its  term  of  existence. 

5310.  Removal  from  office  of  directors,  etc. 

Sfx'.  310.  No  director  shall  be  removed  from  office,  unless  'by  a  vote  of  two 
thirds  of  the  members,  or  of  stockholders  holding  two  thirds  of  the  capital 
stock,  at  a  general  meeting  held  after  previous  notice  of  the  time  and  place,  and 
of  the  intention  to  propose  such  removal.'  Meetings  of  stockholders  for  this 
puri)ose  may  be  called  by  the  president,  or  by  a  majority  of  the  directors,  or  by 
members  or  stockholders  holding  at  least  one  half  of  the  votes.  Such  calls 
must  Ije  in  writing,  and  addressed  to  the  secretary,  who  must  thereupon  give 
noti(re  of  the  time,  place,  and  object  of  the  meeting,  and  by  whose  order  it  is 
called.     If  the  secretary  refuse  to  give  the  notice,  or  if  there  is  none,  the  call 

(«)  Ori(finalsr-cti(.n:  (6)   Original  section: 

>r.<-.  :«)!,.  M  th<-  first  meeting  raHefl.  ns  rood  as  the  Sec.  3U7.  All  elections  must  be  by  ballot,  and  unless 

by-IawH  are  aflojited,  uiilr  hk  it  in  imjvided  that  theoffl-  otherwise  prescribed  by  the  by-laws,  a  majority  of  the 

f<  PK  UHiix-d  in  the  artideK  of  incorporation  shall  con-  subscribed  capital  stock  or  of  the  members  is  ueces- 

tinu<-  until  n  <  crtaiii   other  date,  directors  must  be  sary  to  a  choice. 


elect.-d,  B  majority  i>i  the  subscriljed  capital  stock,  or 
of  the  jiieiiibers,  being  necessary  to  a  choice 


G14 


CORPORATIONS— GENERAL  PROVISIONS.         5310-o315 

may  be  addressed  directly  to  the  members  or  stockholders,  and  be  sen-ed  as  a 
notice,  in  which  case  it  must  specify  the  time  and  place  of  meeting.  The  notice 
must  be  given  in  the  manner  provided  in  section  301  of  this  title,  unless  other 
express  provision  has  been  made  therefor  in  the  by-laws.  lu  case  of  removal, 
the  vacancy  may  be  filled  by  election  at  the  same  meeting. 

5311.  Justice  of  peace  viay  order  meeting,  when. 

Sec.  311.  Whenever,  from  any  cause,  there  is  no  person  authorized  to  call  or 
to  preside  at  a  meeting  of  a  corporation,  any  justice  of  the  peace  of  the  county 
where  such  corporation  is  established,  may,  on  written  application  of  three  or 
more  of  the  stockholders  or  of  the  members  thereof,  issue  a  warrant  to  one  of 
the  stockholders  or  members,  directing  him  to  call  a  meeting  of  the  corpora- 
tion, by  giving  the  notice  required,  and  the  justice  may  in  the  same  warrant 
direct  such  person  to  jDreside  at  such  meeting  until  a  clerk  is  chosen  and 
qualified,  if  there  is  no  other  ofiicer  present  legally  authorized  to  preside 
thereat. 

5312.  Majority  of  stock  must  be  represented,  and  majority  vote  at  elections. 

Sec.  312.  At  all  elections  or  votes  had  for  any  purpose  there  must  be  a 
Tnaioviiv  of  the  subscribed  capital  stock,  or  of  the  members,  represented,  either 

at^iui,'    ■^'"'''^ ''"^iTead  "at  thp  ;ncto„       c  ^  ■"  acting  therein,  in  person  or 

*  0  e°'''7A3L':  .t'"-    ^"l-^  ^i-  S'    «!  elt" :.  :  -*  l^ereof  or  a  boLa  fide  .lock- 

least  ten  clays  pui^x  ^^   ._  r  election  had  other  than  in 

accordance  with  the  provisions  of  this  article  is  voidable  at  the  instance  of  ab- 
sent stockholders  or  members,  and  may  be  set  aside  by  petition  to  the  district 
court  of  the  county  where  the  same  was  held.  Any  regular  or  called  meeting 
of  the  stockholders  or  members  may  adjourn  from  day  to  day,  or  from  time  to 
time,  if  for  any  reason  there  is  not  present  a  majority  of  the  subscribed  stock 
or  members,  or  no  election  or  majority  vote  had — such  adjournment  and  the 
reasons  thereof  being  recorded  in  the  journal  of  proceedings  of  the  board  of 
directors. 

5313.  Stock  of  minors,  insane,  or  deceased,  hoio  represented. 

Sec.  313.  The  shares  of  stock  of  an  estate  of  a  minor,  or  insane  person,  may 
be  represented  by  his  guardian,  and  of  a  deceased  person  by  his  executor  or 
administrator.  [Amendment,  apjpjroved  Ilarch  30,  187-1;  Amendments  1873-4,  203; 
took  effect  July  1,  1874.'^' 

5314.  Election  may  he  jjostponed. 

Sec.  314.  If  from  any  cause  an  election  does  not  take  place  on  the  day  ap- 
pointed in  the  by-laws,  it  may  be  held  on  any  day  thereafter  as  is  provided  for 
in  such  by-laws,  or  to  which  such  election  may  be  adjourned  or  ordered  by  the 
directors.  If  an  election  has  not  been  held  at  the  appointed  time,  and  no  ad- 
journed or  other  meeting  for  the  purpose  has  been  ordered  by  the  directors,  a 
Tr.o^+i,-,r>.  winv  hfi  called  bv  the  stockholders,  as  provided  in  section  310  of  this 

§  315,     Upon  the  application  of  any  person  or  body  cor- 
I  porate  aggrieved  by  any  election  held  by  any  corporate  body, 

I  the  District  Court  of  the  district  in  which  such  election  is  held  yarding  elections. 

j  must  proceed  forthwith  to  hear  the  allegations  and  proofs  of  .  'body  coriiorate  a""grieved  by 
i  the  parties,  or  otherwise  inquire  into  the  matters  of  complaint,  ,.  ,■■       °"/.    ,->       -i  • 

'  and  thereupon  confirm  the  election,  order  a  new  one,  or  direct  proceedings  tnereoi,  tne  Clis- 

such  other   relief  in  the    premises    as  accords  with   right  and  ;  held  must  proceed  forthwith 

'  i"pSf.^'     ^^'"^^7'"•'^  f"'  ^,^?^''«"'  «'"^  ^I'^fo'"^  '^".J  further  pro-  ^^     parties,  or  otherwise  in- 

ceedmgs  are  had  under  this   section,  five  davs' noUce  of  the  '■  ' 

hearing  must  be  given,  under  the  direction  of  the  Court,  or  the  a  confirm  the  election,  order 

I  Judge  thereof,  to  the  adverse  party  or  those   to   be  affected 
thereby.     [In  effect,  April  1,  1878.]  ^^^^.^„^  ^,  ^^^  corporation  by  the  legal 

es  of  the  person  holding  the  same. 

615 


5315-5321  CIVIL  CODE. 

a  new  one,  or  dii-ect  sucli  otLer  relief  in  tlie  premises  as  accords  with  right  and 
justice.  Before  any  proceedings  are  had  under  this  section,  five  days'  notice 
thereof  must  be  given  to  the  adverse  party,  or  those  to  be  affected  thereby. 

5316.  Officers  liable  for  false  cerlificales,  reports  or  notices. 

Sec.  316.  Any  officer  of  a  corporation  who  willfully  gives  a  certificate,  or 
willfully  makes  an  official  report,  public  notice,  or  entry  in  any  of  the  records 
or  books  of  the  corporation,  concerning  the  corporation  or  its  business,  which 
is  false  in  any  material  representation,  shall  be  liable  for  all  the  damages  re- 
sulting therefrom  to  any  person  injured  thereby;  and  if  two  or  more  officers 
unite  or  participate  in  the  commission  of  any  of  the  acts  herein  designated, 
they  shall  be  jointly  and  severally  liable.  [Amendment,  approved  March  30, 
187-4;  Amendments  1873-4;  203;  took  effect  Juhj  1,  1874.^''' 

5317.  Meeting  by  consent  to  be  valid. 

Sec.  317.  When  all  the  stockholders  or  members  of  a  corporation  are  present 
at  any  meeting,  however  called  or  notified,  and  sign  a  written  consent  thereto 
on  the  record  of  such  meeting,  the  doings  of  such  meeting  are  as  valid  as  if  had 
at  a  meeting  legally  called  and  noticed. 

5318.  Proceedings  at  meeting  to  be  binding. 

Sec.  318.  The  stockholders  or  members  of  such  corporation,  when  so  assem- 
bled, may  elect  officers  to  fill  all  vacancies  then  existing,  and  maj'  act  upon 
such  other  business  as  might  lawfully  be  transacted  at  regular  meetings  of  the 
coi*poration. 

5319.  Meetings,  ivJiere  held. 

Sec.  319.  The  meetings  of  the  stockholders  and  board  of  directors  of  a  corpo- 
ration must  be  held  at  its  office  or  principal  place  of  business. 

5320.  When  no  provision  in  by-laws  for  regular  meetings,  special  meetings,  hoio 

called. 

Sec.  320.  When  no  provision  is  made  in  the  by-laws  for  regular  meetings  of 

the  directors  and  the  mode  of  calling  special  meetings,  all  meetings  must  be 

called  b}'  special  notice  in  writing,  to  be  given  to  each  director  by  the  secretary, 

on  the  order  of  the  president,  or  if  there  be  none,  on  the  order  of  two  directors. 

5321.  Book  and  notice  of  directors  and  stockholders  of  banks. 

Sec  321.  Every  corporation  doing  a  banking  business  in  this  state,  must  keep 
in  its  office,  in  a  place  accessible  to  the  stockholders,  depositors,  and  creditors 
thereof,  and  for  their  use,  a  book  containing  a  list  of  all  stockholders  in  such 
corporation,  and  the  number  of  shares  of  stock  held  by  each;  and  eveiy  such 
corporation  must  keep  posted  in  its  office,  in  a  conspicuous  place,  accessible  to 
the  public  generally,  a  notice  signed  by  the  president  or  secretary,  showing: 

1.  The  names  of  the  directors  of  such  corporation; 

2.  The  numl^er  and  value  of  shares  of  stock  held  by  each  director.  The 
entries  on  such  book  and  such  notice  shall  be  made  and  posted  within  twei^,ty- 
four  hours  after  any  transfer  of  stock,  and  shall  be  conclusive  evidence  against 
eadi  director  and  stockholder  of  the  number  of  shares  of  stock  held  by  each. 
Tlie  provisions  of  this  section  shall  apply  to  all  banking  corporations  formed  or 
existing  before  twelve  o'clock  noon  of  the  day  on  which  this  code  took  effect, 
as  well  us  to  tliose  formed  after  such  time.  [Neiv  section,  approved  January  29, 
187G;  Amendments  187o-G,  72;  took  effect  sixtirtJi  day  after  passage. 

la)  Original  fWTtlon:  or  had  fuU  opportunity  to  know  the  same  to  be  false, 
Sec.  310.  Any  >.m(<T  of  «  rorpnratlon  wlm  iiiakt-s  or  in  liable  for  all  the  debts  of  the  corijoratiou  con- 
given  a  .•<-itili.«ti-.  omcittl  rep..rt.  public-  notice,  or  traeted  while  he  was  a  stockholder  or  officer  tlK-n-of; 
enlrj-  iu  any  of  the  re.-onlH  or  bookH  of  the  <-r)rporn-  and  if  more  than  on.;  violate  the  provisions  of  tliis 
lion.  roiircrnlnK  the  eon.oration  oritn  biihini  i^h,  which  B<-ctioa  iu  concert,  they  are  jointly  and  severally  lia- 
is  falbe  iu  any  material  rcpreiieutatiou,  and  viLo  knew  ble. 

G16 


CORPORATIONS— GENERAL  PROVISIONS.  5321 

An  Act  conceiuiug  corporations  and  porsojis  enfjjiged  in  tlie  busiucKH  of  Ijaiiking. 
Approved  April  1,  1H7C;  1875-C,  729. 

Banks  to  piihlkh  and  record  semi-anmial  slalcmenfs. 

Section  1.  Every  corporation  and  all  persous  and  every  person  hereafter  doiii;^' 
a  banking-  business  in  this  state  shall,  in  January  and  July  of  every  year,  i)iil)- 
lish  in  at  least  one  newsj^aper  published  in  the  county  in  which  the  ])riiK-ijial 
office  of  such  corporation  may  be  situated,  or  in  which  said  persons  or  person 
may  reside,  and  also  file  for  record,  in  the  recorder's  office  of  said  county,  a 
sworn  statement,  verified,  in  the  case  of  any  such  corporation,  by  its  i)resident 
or  manager,  and  by  its  secretary  or  cashier,  and  in  the  case  of  any  such  indi- 
vidual or  individuals,  by  him  or  them,  of  the  amount  of  ca])ital  actually  \m'u\ 
into  such  corporation,  or  into  such  banking  business;  provided,  that  nothing 
shall  be  deemed  capital  actually  paid  in  except  money  bona  tide  paid  into  the 
treasuiy  of  such  bank,  and  under  no  circumstances  shall  the  promisson'  note, 
check,  or  other  obligation  of  any  director  or  stockholder,  or  of  the  proprietors 
or  proiDrietor  of  any  such  bank,  be  treated,  computed,  or  in  any  manner  con- 
sidered any  part  of  such  actually  paid  in  capital.  If  no  newspaper  of  general 
circulation  be  published  in  the  aforementioned  county,  then  and  in  that  case 
such  publication  of  said  statement  shall  be  made  in  at  least  one  newspaper  of 
general  circulation  published  in  the  city  and  county  of  San  Francisco,  and  in 
one  newspaper  of  general  circulation  published  in  the  city  and  county  of  Sac- 
ramento. 
Assets  and  liabilities  to  he  described. 

Sec.  2.  Every  corporation  and  all  persons  and  every  person  hereafter  doing 
a  banking  business  in  this  state  shall  likewise  publish  in  such  newspaper  or 
newspapers,  and  shall  also  file  for  record,  in  thfe  recorder's  office  of  said  county, 
in  January  and  July  of  each  year,  a  like  sworn  statement  of  the  actual  condi- 
tion and  value  of  its  assets  and  liabilities,  and  where  said  assets  are  situated. 
Liability  for  making  false  statement. 

Sec.  3.  The  directors  of  every  such  corporation  which  shall  publish  or  file  for 
record,  as  aforesaid,  a  false  statement  of  the  amount  of  capital  actually  and 
bona  fide  paid  into  such  corporation,  or  a  false  statement  of  the  actual  condi- 
tion and  value  of  its  assets  and  liabilities,  or  as  to  where  said  assets  are  situated, 
\shall  be  jointly  and  severally  liable  to  any  person  thereafter  deaKng  with  such 
sorporation  to  the  full  extent  of  such  dealing;  and  no  corporation,  and  no  per- 
V)n  or  persons  who  fail  to  comply  with  the  provisions  or  any  of  the  provisions 
\  this  law,  shall  maintain  or  prosecute  any  action  or  proceeding  in  any  of  the 
c\irts  of  this  state  until  they  shall  have  first  duly  filed  the  statements  herein 
piVided  for,  and  in  all  other  respects  complied  with  the  provisions  of  this  law; 
no^sliall  any  assignee  or  assignees  of  any  such  coi-jioration  or  person  whose 
assinnient  shall  be  made  subsequent  to  any  such  failure  to  comi)ly  with  the 
pro^ions  of  this  law,  maintain  any  action  or  proceeding  in  any  court  of  this 
state^ntil  his  or  their  assignor  or  assignors  shall  have  first  duly  complied  with 
the  pivisions  of  this  law. 

Foreici\f)ayiking  corporations. 

Sec.  Where  any  of  such  banking  corporations  shall  be  foreign,  the  state- 
ments lieinbef ore  provided  for  shall  be  verified  by  the  agent  or  manager  of  the 
business^  gud^  corporation  resident  in  this  state,  who  shall  be  subject  to  the 
same  liabtigg  herein  provided  as  against  directors  of  any  such  banking  cor- 
poration, \4  also  as  against  every  such  bank  officer. 
Recorder  tk^p  records. 

Sec.  5.  T^\  recorder  of  each  county  of  this  state  shall  keep  two  sets  of  well- 
bound  book!^^!-  the   record  of  the  sworn   statements  herein   provided  fur, 
\  617 


5321-5322  CIVIL  CODE. 

respectively,  one  of  which  sets  of  books  shall  be  labeled  "Statements  of  Bank- 
ing Capital,"  and  the  other,  "  Statements  of  Banking  Assets,"  and  said  recorder 
shall,  upon  the  payment  of  his  fees  for  the  same,  record  separately  said  respec- 
tive sworn  statements  in  its  appropriate  book,  and  shall  keep  a  separate  index 
of  each  of  said  sets  of  books.  Said  original  sworn  statements  need  not  be 
acknowledged  in  order  to  be  recorded  as  aforesaid,  but  must  be  verified  as  afore- 
said before  some  judge  or  officer  of  this  state  authorized  to  take  affidavits  to  be 
used  before  any  coui't  in  this  state,  and  shall  always  remain  and  be  kept  on 
file  in  the  office  of  said  recorder. 

Fees  of  recorder. 

Sec.  6.  The  recorder  of  eveiy  county  in  this  state  shall  receive,  for  recording 
any  of  the  sworn  statements  herein  provided  for,  for  eveiy  folio,  twenty-five 
cents;  and  for  noting  on  any  such  sworn  statement  the  time  when  and  the 
place  where  recorded,  twenty -five  cents;  and  for  certified  copies  of  such  sworn 
statements,  to  which  any  one  paying  for  the  same  shall  be  entitled,  twenty-five 
cents  per  folio. 

Sec.  7.  This  act  shall  take  effect  from  and  after  its  passage. 

[After  the  j^assage  of  the  above  new  section  321,  the  legislatiu'e  joassed  a 
second  new  section  321  as  follows:] 

Change  of  principal  place  of  business. 

Sec.  321.  Every  corporation  that  has  been  or  may  be  created  under  the  gen- 
eral laws  of  this  state,  may  change  its  princii^al  place  of  business  from  one 
place  to  another  in  the  same  county,  or  from  one  city  or  county  to  another  city 
or  county,  within  this  state.  Before  such  change  is  made,  the  consent  in  writing 
of  the  holders  of  two  thirds  of  the  capital  stock  must  be  obtained  and  filed  in 
the  office  of  the  corporation.  When  such  consent  is  obtained  and  filed,  notice 
of  the  intended  removal  or  change  must  be  published  at  least  once  a  week  for 
three  successive  weeks  in  some  newspaper  published  in  the  county  wherein 
said  principal  place  of  business  is  situated,  if  there  is  one  published  therein; 
if  not,  in  a  newspaper  of  an  adjoining  county,  gi\'ing  the  name  of  the  county  or 
city  where  it  is  situated,  and  that  to  which  it  is  intended  to  remove  it.  [New 
section,  approved  April  3,  1876;  Amendments  1875-6,  73;  took  effect  immediately. 

CHAPTER  II. 

CORPORATE   STOCK. 
AuTicLK    I .  Stock  and  Stockholdkhs '5-2 

II.    ASh>KSSMENT  OF    SxoCK 331 

ARTICLE  I. 

STOCK    AND    STOCKHOLDERS. 

5322.  stockholders  liable  fur  debts. 

Sec  322.  Each  stockholder  of  a  corporation  is  individually  and  pP^iHlljL 
liable  for  such  pnj])ortion  of  its  debts  and  liabilities  as  thie'amount  of'^ock  or 
shares  owned   by  him   bears  yi  the  whole  of  the  subscribed  capita'^tock  or 
shares  of  the  coiixn-ation,  and/for  a  like  proportion  only  of^^each  del^|[^.c|siin| 

V^ainst  the  corporatjon.j  Any  creditor  of  the  corporation  may  inptute  joint 
or  severaTactions  again/t  any  of  its  stockholders  for  the  2:)ro])Oi-tion  ^^^  claim, 
payable  l)y  each,  and  in  such  action  the  court  must  ascertain  the   ©portion  of  "^ 

, the  claim  or  debt  for  which  each  defendant  is  liable,f^and_a  sev'iLJl'jloiii^iiij 
must  be  rendered  against  each,  in  conformity  thereA\^itii.j    If  0  ^stockholder  /^ 
pays  his  proporfion  of  aiiy~clebt  due  from  the  Corpora ti<5n,  inr'^'^^  Avhile  he 
was  such  stockholder,  he  is  relieved  from  any  further  personal  "'•^^^^^J  ^©1*  such 
V  .«..V  •/-•^  CI 8 


CORPOEATIOXS— GENERAL  PROVISIONS.         5322-5324 

debt;  and  if  an  action  Las  Leen  Liouglit  against  hi la  u])Oii  siicli  debt,  it  shall  l»o 
dismissed  as  to  him,  upon  his  payinjif  the  costs,  or  such  proportion  thfrcof  u«  , 
may  be  properly  chargeable  against  him.  The  liability  of  each  stcjcklmhlcr  is  ^ 
determined  by  the  amount  of  stock  or  shares  owned  by  him  at  the  tiinc  the  debt 
or  liability  was  incurred;  and  such  liability  is  not  released  by  any  subsequent 
transfer  of  stock.  The  term  stockholder,  as  used  in  this  section,  shall  ujtply 
not  only  to  such  persons  as  appear  by  the  books  of  the  corporation  to  be  such, 
but  also  to  every  equitable  owner  of  stock,  although  the  same  appear  on  tho 
books  in  the  name  of  another,  and  also  to  every  person  who  has  advanced  tho 
installments  or  purchase-money  of  stock  in  the  name  of  a  minor,  so  long  as  tho 
latter  remains  a  minor;  and  also  to  everj'^  guardian  or  other  trustee  who  volun- 
tarily invests  any  trust  funds  in  the  stock.  Trust  funds  in  the  hands  of  a 
guardian  or  trustee  shall  not  be  liable  under  the  provisions  of  this  section  by 
reason  of  any  such  investment,  nor  shall  the  person  for  whose  benefit  the  in- 
vestment is  made  be  responsible  in  respect  to  the  stock,  until  he  becomes  com- 
petent and  able  to  control  the  same;  but  the  responsibility  of  the  guardian  or 
trustee  making  the  investment  shall  continue  until  that  i)eriod.  Stock  held  as 
collateral  security,  or  by  a  trustee,  or  in  any  other  representative  capacity,  does 
not  make  the  holder  thereof  a  stockholder  within  the  meaning  of  this  section, 
except  in  the  cases  above  mentioned,  so  as  to  charge  him  with  any  proportion 
of  the  debts  or  liabilities  of  the  corporation;  but  the  pledgor,  or  j^erson,  or 
estate  represented,  is  to  be  deemed  the  stockholder  as  respects  such  lialnlit}'. 
In  corporations  having  no  capital  stock,  each  member  is  individvially  and  per- 
sonally liable  for  his  jDroi^ortion  of  its  debts  and  liabilities,  and  similar  actions 
may  be  brought  against  him,  either  alone  or  jointly  with  other  members,  to 
enforce  such  liability  as  by  this  section  may  be  brought  against  one  or  more 
stockholders,  and  similar  judgments  may  be  rendered.  The  liability  of  each 
stockholder  of  a  corporation  formed  under  the  laws  of  any  other  state  or  terri- 
tory of  the  United  States,  or  of  any  foreign  country,  and  doing  business  within 
this  state,  shall  be  the  same  as  the  liability  of  a  stockholder  of  a  corporation 
created  under  the  constitution  and  laws  of  this  state.  \Amendmetd ,  approved 
March  15,  1876;  Amendments  1875-6,  73;  took  effect  sixtieth  day  after  passage  }•■ 

5323.   Certificates,  how  and  when  issued. 

Sec.  323.  All  corporations  for  profit  must  issue  certificates  for  stock  when 
fully  paid  up,  signed  by  the  president  and  secretary,  and  may  provide,  in  their 
by-laws,  for  issuing  certificates  prior  to  the  full  payment,  under  such  restrictions 
and  for  such  puri)oses  as  their  by-laws  may  provide. 

532.^.   Transfer  of  shares. _ 

Sec  324.  Whenever  the  capital  stock  of  any  corporation  is  di^aded  into  shares, 
and  certificates  therefor  are  issued,  such  shares  of  stock  are  personal  property 
and  maj  be  transferred  by  indorsement  by  the  signature  of  the  proprietor,  or  his 
attorney  or  legal  representative,  and  delivery  of  the  certificate;  but  such  trans- 
fer is  not  valid,  excei^t  between  the  parties  thereto,  until  the  same  is  so  entered 
upon  the  bjoks  of  the  corporation  as  to  show  the  names  of  the  parties  by  and  to 

(a)   Original  se»tion:  given  Beverally  in  conformity  therewith     If  nny  Fto-k. 

Sec.  322.  Each  BX,okhoiaer  or  member  of  any  corpo-  ho'der  or  m.-mber  of  a  coriioralion  I'Hy*  m*- 1  "^l 'J'''"''  ° 

ration  is  Beverany.mdividiially,  and  personally  liable  of  any  debt  due  by  such  corroratinn  he  is  rele  Bed  and 

for  such  proi5ortion  vf  all  its  debts  and  liabilities  as  the  discharged   from  any  furi  her  ludividual   or  1">  ;"«» 

amount  of  stock  or  glares  owned  by  him  in  such  cor-  liability  for  such  debt.     Stock  held  as  « ••';''"/;''"■ 

poration  bears  to  tha^vhole  of  the  subscribed  capital  rity,  or  by  a  trustee,  or  n.  »'jy /l"'*'^.  f '^''^;'^"' "' .' ' 

stock  or  shares  ot  the  corporation,  for  the  recovery  <.f  capacity,  docs  not  make  the  ''''''1"^  »"";''  "'''''[^ 

which  joint  or  severa. actions  may  be  instituted  and  IcoUler.but  the  pledgor  or  person  or  estate  represent,  d 

prosecuted:  and  in  aujsuch  action  against  any  of  the  is  the  stockholder.                    .„,„„,i„j  >,..  ,rt  of  M«r.-h 

stockholders  or  members  of  a  corporal  ion.  the  court  The  section  was  previously  amended  »>  '^    f'f  ^«r  h 

mu^t  ascertain  and  det^-mine  the  proportion  of  the  30.  1874;  Amc"'  wents  ly..J-».20<.  so  as  to  re.  d     K.     he 

debt  which  is  the  subject  of  the  suit  for  which  each  amendment  in  the  text,  ^''''l^^,'''"*    ' J'';."''!.!i!'  *  \il 

of  the  stockholders  or  me^ibers  who  are  defendants  in  la>t  sentence,  coniiueucmg  with  the  \xoraB      lue  ua- 

the  action  are  severally  liable,  and  judgment  must  be  bility  of  each  stocklioiaer. 

\  619 


5324-5332  CB^L  CODE. 

whom  transferred,  tlie  number  or  designation  of  tlie  shares,  and  the  date  of  the 
transfer. 

5325.  SJia7^es  held  by  mat^ined  women,  etc. 

Skc.  325.  Shares  of  stock  in  corporations  held  or  owned  by  a  married  woman 
may  be  ti'ansferred  by  her,  her  agent  or  attorney,  without  the  signature  of  her 
husband,  in  the  same  manner  as  if  such  married  woman  were  a  femme  sole. 
All  dividends  payable  upon  any  shares  of  stock  of  a  corporation  held  by  a  mar- 
ried woman  may  be  paid  to  such  married  woman,  her  agent  or  attorney,  in  the 
same  manner  as  if  she  were  unmarried,  and  it  is  not  necessary  for  her  husband 
to  join  in  a  receipt  therefor;  and  any  proxy  or  power  given  by  a  married  woman 
touching  any  shares  of  stock  of  an}'  corporation  owned  by  her,  is  valid  and 
binding  without  the  signature  of  her  husband,  the  same  as  if  she  were  unmar- 
ried. 

5326.  Xon-1-esident  stockholders. 

Sec.  326.  "When  the  shares  of  stock  in  a  corporation  are  owned  by  parties 
residing  out  of  the  state,  the  president,  secretary  or  directors  of  the  corpora- 
tion, before  entenng  any  transfer  of  the  shares  on  its  books,  or  issuing  a  certifi- 
cate therefor,  to  the  transferee,  may  rec[uire  from  the  attorney  or  agent  of  the 
non-resident  owner,  or  from  the  person  claiming  under  the  transfer,  an  affidavit 
or  other  evidence  that  the  non-resident  owner  was  alive  at  the  date  of  the  trans- 
fer, and  if  such  affidavit  or  other  satisfactory  evidence  be  not  furnished,  may 
require  from  the  attorney,  agent  or  claimant,  a  bond  of  indemnity,  with  two 
sureties,  satisfactory  to  the  officers  of  the  corporation,  or  if  not  so  satisfactory, 
then  one  apjiroved  by  a  district  judge,  or  the  county  judge  of  the  county  in 
which  the  princijjal  office  of  the  corporation  is  situated,  conditioned  to  protect 
the  coi-poration  against  any  liability  to  the  legal  rej^resentatives  of  the  owner  of 
the  shares,  in  case  of  his  or  her  death  before  the  transfer;  and  if  such  affidavit 
or  other  evidence  or  bond  be  not  furnished  when  required,  as  herein  provided, 
neither  the  corporation,  nor  any  officer  thereof,  shall  be  liable  for  refusing  to 
enter  the  transfer  on  the  books  of  the  corporation.  [Amendment,  approved 
March  30,  187tt;  Amendments  1873-4,  205;  took  effect  July  1,  1874.^'^^ 

AKTICLE   II. 

ASSESSMENTS    OF    STOCK. 

5331.  Directors  may  levy  assessments. 

Sec.  331.  The  directors  of  any  corporation  formed  or  existing  under  tb3  laws 
of  this  state,  after  one  fourth  of  its  capital  stock  has  been  subscribed,  nay,  for 
the  purpose  of  paying  expenses,  conducting  business,  or  paying  debts,  .evy  and 
collect  assessments  upon  the  subscribed  capital  stock  thereof,  in  the  manner 
and  form,  and  to  the  extent  provided  herein.  [Amendment,  approved  Marcli  30, 
1874;  Amendments  1873-4,  200;  took  effect  July  1,  1874.^''> 

5332.  Limitation  of  assessments. 

Sec.  332.  No  one  assessment  must  exceed  ten  per  cent,  of  the  amount  of  the 

(a)  Original  Bcction:  Ky  to  Uie  legal  representatives  o  Uie  owner  of  such 

Ke<--.  .JiiC    Jn  all  tranhffTH  of  (.hares  of  Ktork  In  corpo-  stock,  in  case  of  his  or  her  death  jeforc  surli  transfer; 

ratlon«,on  hihalf  of  owneni  residing  <iut  of  the  state,  and  in  case  of   refusal  to  furuj'h  such   bonds  upon 

the  president,  i-ecretary,  or  diii-ctorH  <pf  such  corpora-  lefjuest,  such  transfer  is  uttery  void  as  against  the 

tion,  before  entering  such  transfer  on  th-^  books  of  the  corporation, 

corporation   or  issuing  the  ci-itilicate  tli<  refor  to  tlio  ('/)   Original  section: 

transferee,  must  r.  fjuire  from  sm-h  attorii<y,  or  from  Sko.  :i:n.  The  directnrs  of  my  corporation  forined 

the  person  claiming  under  such  traiisfer,  a  bond  of  In-  uud.  r  the  laws  of  this  state  for  the  purpose  of  pay- 

deninity,  with  two  sureties,  satisfactory  to  the  oflicirs  ing  expenses,  conducting  biBiness,   or  paying  debts, 

of  the  corporation,  or  if  not  so  satisfai  tory,  then  ap-  nniy   levy  and   collect  as.-eBnieuts   upon   the   capital 

proved  by  the  district  judge  of  the  district  in  which  s'ock  thereof,  in  the  niauutf  and  form  and  to  the  extent 

the  prln<:ipal  office  of  the  corp^iraflon  is  situated,  con-  provided  herein, 
ditioued  to  protect  such  coriJoration  against  any  liabil- 

G20 


CORPORATIONS— GENERAL  PROVISIONS.         5332-533G 

capital  stock  named  in  the  articles  of  incorporation,  except  in  the  cases  in  this 
section  otherwise  provided  for,  as  follows: 

1.  If  the  whole  capital  of  a  corporation  has  not  been  paid  np,  nnd  llie  (•r)rpo- 
ration  is  unable  to  meet  its  liabilities  or  to  satisfy  the  claims  of  its  creditors,  tho 
assessment  may  be  for  the  full  amount  unpaid  upon  the  capital  stock;  or  if  a 
less  amount  is  sufticient,  then  it  may  be  for  such  a  percentage  as  will  raise  that 
amount; 

2.  The  directors  of  railroad  corporations  ma}-  assess  the  capital  stock  in 
installments  of  not  more  than  ten  per  cent,  per  month,  unless  in  the  articles  of 
incorj:)oration  it  is  otherwise  provided; 

8.  The  directors  of  fire  or  marine  insurance  corj^orations  maj'  assess  such  a 
percentage  of  the  capital  stock  as  they  deem  proper. 

5333.  Levy  of  assessment. 

Sec.  333.  No  assessment  must  be  levied  while  any  portion  of  a  previous  one 
remains  unpaid,  unless: 

1.  The  jjower  of  the  corporation  has  been  exercised  in  accordance  with  the 
provisions  of  this  article  for  the  purpose  of  collecting  such  previous  assessment; 

2.  The  collection  of  the  previous  assessment  has  been  enjoined;  or, 

3.  The  assessment  falls  within  the  provisions  of  either  the  first,  second  or 
third  subdivision  of  section  332. 

5334.  IVhat  order  shall  contain. 

Sec.  334.  Every  order  levying  an  assessment  must  specify  the  amount  thereof, 
when,  to  whom,  and  where  payable;  fix  a  day,  subsequent  to  the  full  tenn  of 
publication  of  the  assessment  notice,  on  which  the  unpaid  assessments  shall  be 
delinquent,  not  less  than  thirty  nor  more  than  sixt}'  daj-s  from  the  time  of  mak- 
ing the  order  levying  the  assessment;  and  a  day  for  the  sale  of  delinquent 
stock,  not  less  than  fifteen  nor  more  than  sixty  days  from  the  day  the  stock  is 
declared  delinquent. 

5335.  Notice  of  assessment. 

Sec.  335.  Uj^on  the  making  of  the  order,  the  secretary  shall  cause  to  be 
published  a  notice  thereof,  in  the  following  form : 

(Name  of  corporation  in  full.  Location  of  principal  place  of  business.) 
Notice  is  hereby  given,  that  at  a  meeting  of  the  directors,  held  on  the  (date),  an 
assessment  of  (amount)  per  share  was  levied  upon  the  capital  stock  of  tlie  cor- 
poration, payable  (when,  to  whom,  and  where).  Any  stock  upon  which  this 
assessment  shall  remain  unpaid  on  the  (day  fixed),  will  be  delinquent  and  adver- 
tised for  sale  at  public  auction,  and,  unless  payment  is  made  before,  will  be 
sold  on  the  (day  appointed),  to  pay  the  delinquent  assessment,  together  with 
costs  of  advertising  and  expenses  of  sale. 

(Signature  of  secretary,  with  location  of  ofiice.) 

5336.  Service  and  publication  of  notice. 

Sec.  336.  The  notice  must  be  personally  served  upon  each  stockholder,  or, 
in  lieu  of  personal  service,  must  be  sent  through  the  mail,  addressed  to  each 
stockholder  at  his  place  of  residence,  if  known,  and  if  not  known,  at  the  place 
where  the  principal  office  of  the  corporation  is  situated,  and  be  i)ublished  once 
a  week,  for  four  successive  weeks,  in  some  newspaper  of  general  circulation 
and  devoted  to  the  publication  of  general  news,  published  at  the  place  desig- 
nated in  the  articles  of  incorporation  as  the  principal  place  of  business,  and  also 
in  some  newspaper  published  in  the  county  in  which  the  works  of  the  coi-pora- 
tion  are  situated,  if  a  paper  be  published  therein.  If  the  works  of  the  coqiora- 
tion  are  not  within  a  state  or  territory  of  the  United  States,  publication  in  a 
paper  of  the  place  where  they  are  situated  is  not  necessary.  If  there  be  no 
newspaper  published  at  the  place  designated  as  the  principal  place  of  business 

621 


5336-5341  CIVIL  CODE. 

of  the  corporation,  then  the  publication  must  be  made  in  some  other  newspaper 
of  the  county,  if  there  be  one,  and  if  there  be  none,  then  in  a  newspaper  pub- 
lished in  an  adjoining  county.  \  Amendment,  approved  March  30,  1874;  Amend- 
menlH  1S73-4,  20G;  took  effect  July  1,  1874.<-'> 

5337.  Delinquent  notice. 

{Sec.  337.  If  any  portion  of  the  assessment  mentioned  in  the  notice  remains 
unpaid  on  the  day  specified  therein  for  declaring  the  stock  delinquent,  the  sec- 
retary must,  unless  otherwise  ordered  by  the  board  of  directors,  cause  to  be 
published  in  the  same  papers  in  which  the  notice  hereinbefore  provided  for  shall 
have  been  jjublished,  a  notice  substantially  in  the  following  form: 

(Name  in  full.  Location  of  principal  place  of  business.)  Notice. — There  is 
delinquent  ujjon  the  following  described  stock,  on  account  of  assessm.ent  levied 
on  the  (date),  (and  assessments  levied  iDrevious  thereto,  if  any),  the  several 
amounts  set  opposite  the  names  of  the  resj^ective  shareholders,  as  follows: 
(Names,  number  of  certificate,  number  of  shares,  amount.)  And  in  accordance 
with  law  (and  an  order  of  the  board  of  directors,  made  on  the  [date],  if  any 
such  order  shall  have  been  made),  so  many  shares  of  each  parcel  of  such  stock 
as  may  be  necessary',  will  be  sold,  at  the  (particular  place),  on  the  (date),  at  (the 
hour)  of  such  day,  to  pa_y  delinquent  assessments  thereon,  together  with  costs 
of  advertising  and  expenses  of  the  sale. 

(Name  of  secretary,  with  location  of  office.) 

5338.  Contents  of  notice. 

Sec.  338.  The  notice  must  specif}^  every  certificate  of  stock,  the  number  of 
shares  it  represents,  and  the  amount  due  thereon,  except  where  certificates  may 
not  have  been  issued  to  parties  entitled  thereto,  in  which  case  the  number  of 
shares  and  amount  due  thereon,  together  with  the  fact  that  the  certificates  for 
such  shares  have  not  been  issued,  must  be  stated. 

5339.  Publication  of  notice. 

Sec  339.  The  notice  when  published  in  a  daily  paper,  must  be  published  for 
ten  days,  excluding  Sundays  and  holidays,  previous  to  the  da^'  of  sale.  "When 
published  in  a  weekly  paper,  it  must  be  ijublished  in  each  issue  for  two  weeks 
previous  to  the  day  of  sale.  The  first  publication  of  all  delinquent  sales  must 
be  at  least  fifteen  days  prior  to  the  day  of  sale, 

5340.  Jurisdiction  acquired,  hoio. 

Sec.  340.  By  the  publication  of  the  notice,  the  corporation  acquires  jurisdic- 
tion to  sell  and  convey  a  perfect  title  to  all  of  the  stock  described  in  the  notice 
of  sale  upon  which  any  portion  of  the  assessment  or  costs  of  advertising  re- 
mains unpaid  at  the  hour  ajipointed  for  the  sale,  but  must  sell  no  more  of  such 
stock  than  is  necessary  to  pay  the  assessments  due  and  costs  of  sale. 

5341.  Sale  to  be  by  ptuljUr  auction. 

Sec.  341.  On  the  day,  at  the  place,  and  at  the  time  appointed  in  the  notice 
of  sale,  the  seci-etary  must,  unless  otherwise  ordered  by  the  directors,  sell  or 
cause  to  be  sold  at  public  auction,  to  the  highest  bidder  for  cash,  so  many  shares 
of  each  i)arcel  of  the  described  stock  as  may  be  necessary  to  pay  the  assess- 
ment and  charges  thereon,  according  to  the  terms  of  sale;  if  payment  is  made 
before  the  time  fixed  for  sale,  the  party  paying  is  only  requii-ed  topaythe  actual 
cost  of  advertising,  in  addition  to  the  assessment. 

(a)  OriglnHl  Bcctlon:  the  place  where  situated  is  not  necessary.  If  there  is 
Sec.  :t-Ui.  Tlic  imtite  must  be  published  once  each  no  newspaper  pnblisUed  at  the.  place  deBifuatcd  as  the 
week  for  four  BU<.-i-<-HKlve  wofkH.  in  Home  daily  or  principal  place  of  business  of  the  corporation,  then 
•ttci'kly  jMipcr  ]inbliKh(-(l  at  the  plm-e  (lisi(,'nated  in  the  the  publication  must  bo  made  in  the  newspaper  pub- 
articles  of  incorporation  as  the  i>rin<i]ial  place  of  busi-  lished  in  an  adjoining  county.  The  notice  may  be 
n<ss,  and  also  in  some  paper  publisln-d  in  the  county  served  by  deliveriuf,'  a  copy  thereof,  certified  by  the 
in  \v)ii<  h  the  w<.rkH  of  the  corjiriration  arc  situated,  if  secretary,  to  each  stockholdcer  personally,  and  in  case 
a  pajier  is  piiblished  therein.  If  the  works  of  t)ie  cor-  of  such  service  upon  all  the  stockholders  of  the  cor- 
poration are  not  situated  within  some  state  or  territory  poration,  no  notice  by  publication  is  necessary,  but 
of  the  United  States,  then  publication  iu  a  paper  of  such  personal  notice  is  sufficient, 

G22 


CORPOEATIONS— GENERAL  PROVISIONS.         5342-5348 

5342.  Highest  bidder  to  he  the  purchai<er. 

Sec.  342.  The  person  offering  at  such  sale  to  pay  the  assessment  ami  costs 
for  the  smallest  number  of  shares  or  fraction  of  a  share  is  the  highest  bidder, 
and  the  stock  purchased  must  be  transferred  to  him  on  the  stock  buuks  of  the 
corporation,  on  payment  of  the  assessment  and  costs. 

5343.  la  default  of  bidders,  corporation  may  purehase. 

Sec.  343.  If,  at  the  sale  of  stock,  no  bidder  offers  the  amount  of  the  assess- 
ments and  costs  and  charges  due,  the  same  may  be  bid  in  and  purchased  by  tbe 
corporation,  through  the  secretary,  president,  or  any  director  thereof,  at  the 
amount  of  the  assessments,  costs,  and  charges  due;  and  the  amount  of  the 
assessments,  costs,  and  charges  must  be  credited  as  paid  in  full  on  tlie  books  of 
the  corporation,  and  entry  of  the  transfer  of  the  stock  to  the  corporation  must 
be  made  on  the  books  thereof.  While  the  stock  remains  the  property  of  the 
corporation  it  is  not  assessable,  nor  must  any  dividends  be  declared  thereon; 
but  all  assessments  and  dividends  must  be  apportioned  upon  the  stock  held  by 
the  stockholders  of  the  corporation. 

5344.  Disposition  of  stock  purchased  bxj  corporation. 

Sec.  344.  All  purchases  of  its  own  stock  made  by  any  corporation  vest  the  legal 
title  to  the  same  in  the  corporation;  and  the  stock  so  purchased  is  held  subject 
to  the  control  of  the  stockholders,  who  may  make  such  disposition  of  tlie  same 
as  they  deem  fit,  in  accordance  with  the  by-laws  of  the  corporation  or  vote  of  a 
majority  of  all  the  remaining  shares.  Whenever  any  portion  of  the  capital  stock 
of  a  corporation  is  held  by  the  corporation  by  purchase,  a  majority  of  the 
remaining  shares  is  a  majority  of  the  stock  for  all  purposes  of  election  or  vot- 
ing on  any  question  at  a  stockholders'  meeting. 

5345.  Extension  of  time  of  delinquent  sale. 

Sec.  345.  The  dates  fixed  in  any  notice  of  assessment  or  notice  of  delinquent 
sale,  published  according  to  the  provisions  hereof,  may  be  extended  from  time 
to  time  for  not  more  than  thirty  days,  by  order  of  the  directors,  entered  on  the 
records  of  the  corporation;  but  no  order  extending  the  time  for  the  perform- 
ance of  any  act  specified  in  any  notice  is  effectual  unless  notice  of  such  exten- 
sion or  postponement  is  appended  to  and  published  with  the  notice  to  which 
the  order  relates. 

5346.  Assessments  shall  not  be  invalidated. 

Sec.  346.  No  assessment  is  invalidated  by  a  failure  to  make  publication  of 
the  notices  hereinbefore  provided  for,  nor  by  the  nonperformance  of  any  act 
required  in  order  to  enforce  the  payment  of  the  same;  but  in  case  of  any 
substantial  error  or  omission  in  the  course  of  proceedings  for  collection,  all 
previous  proceedings,  except  the  levying  of  the  assessment,  are  void,  and  pub- 
lication must  be  begun  anew. 

5347.  Action  fur  recoverij  of  stock  and  limitation  thereof 

Sec.  347.  No  action  must  be  sustained  to  recover  stock  sold  for  delinquent 
assessments,  upon  the  ground  of  irregularity  in  the  assessment,  irregularity  or 
defect  of  the  notice  of  sale,  or  defect  or  irregularity  in  the  sale,  unless  the  party 
seeking  to  maintain  such  action  first  pays  or  tenders  to  the  corporation,  or  the 
party  holding  the  stock  sold,  the  sum  for  which  the  same  was  sold,  together 
with  all  subsequent  assessments  which  may  have  been  paid  thereon  and  interest 
on  such  sums  from  the  time  they  were  paid;  and  no  such  action  must  be  sus- 
tained unless  the  same  is  commenced  by  the  filing  of  a  complaint  and  the  issu- 
ing of  a  summons  thereon  within  six  months  after  such  sale  was  made. 

5348.  Publication,  how  proved. 

Sec.  348.  The  publication  of  notice  required  by  this  article,  may  be  proved 

G23 


5348-5355  CR^IL  CODE.    . 

bv  the  affitlavit  of  the  printer,  foreman,  or  principal  clerk  of  the  newspaper  in 
which  the  same  was  puUished;  and  the  affidavit  of  the  secretary  or  auctioneer  is 
prima  facie  evidence  of  the  time  and  place  of  sale,  of  the  quantity  and  particular 
description  of  the  stock  sold,  and  to  whom,  and  for  what  price,  and  of  the  fact 
of  the  purchase-money  being  paid.  The  affidavits  must  be  filed  in  the  office  of 
the  corporation,  and  copies  of  the  same,  certified  by  the  secretary  thereof,  are 
prima  facie  evidence  of  the  facts  therein  stated.  Certificates  signed  by  the  sec- 
retary and  under  the  seal  of  the  corporation,  are  prima  facie  evidence  of  the 
contents  thereof.  [Amendment ,  approved  March  30,  1874;  Amendments  1873-4, 
207;  took  effect  July  1,  1874.^=" 

5349.    Waiver  of  sale — Action  to  recover  assessment. 

Sec.  349.  On  the  day  specified  for  declaring  the  stock  delinquent,  or  at  any 
time  subsec|uent  thereto  and  before  the  sale  of  the  delinquent  stock,  the  board 
of  directors  may  elect  to  waive  further  proceedings  under  this  chapter  for  the 
collection  of  delinquent  assessments,  or  any  part  or  jjortion  thereof,  and  may 
elect  to  proceed  by  action  to  recover  the  amount  of  the  assessment  and  the  costs 
and  expenses  already  incurred,  or  any  part  or  portion  thereof. 


CHAPTER  III. 

COKPORATE    POWERS. 

Abticlk  I.  Gkxkeal  Powers 3354 

II.  RixoRDs  5377 

III.  Examination  of  Corporation 5382 

IV.  Judgment  against  and  Sale  of  Coepoeate  Peopektt 5388 

ARTICLE  I. 

GENERAL    POWERS. 

5354.  Poicers  of  corporations. 

Sec.  354.  Every  corporation,  as  such,  has  power: 

1.  Of  succession,  by  its  corporate  name,  for  the  period  limited;  and  when 
no  period  is  limited,  perpetually; 

2.  To  sue  and  be  sued,  in  any  court; 

3.  To  make  and  use  a  common  seal,  and  alter  the  same  at  pleasure; 

4.  To  purchase,  hold  and  convey  such  real  and  personal  estate  as  the  pur- 
poses of  the  corporation  may  require,  not  exceeding  the  amount  limited  in  this 
Part; 

5.  To  appoint  such  subordinate  officers  or  agents  as  the  business  of  the  cor- 
poration may  require,  and  to  allow  them  suitable  compensation; 

G.  To  make  by-laws,  nc^  inconsistent  with  any  existing  law,  for  the  manage- 
ment of  its  property,  the  regulation  of  its  affairs,  and  for  the  transfer  of  its 
stock; 

7.  To  admit  stockholders  or  members,  and  to  sell  their  stock  or  shares  for 
the  payment  of  assessments  or  installments; 

8.  To  enter  into  any  obligations  or  contracts  essential  to  the  transaction  of 
its  ordinaiy  affairs,  or  for  the  purpo.ses  of  the  corporation. 

5355.  JAmitation  of  power. 

Sec  355.  In  addition  to  the  joowers  enumerated  in  the  preceding  section, 
and  to  those  expressly  given  in  that  title  of  this  Part  under  which  it  is  incor- 
porated, no  coq^oration  shall  jiossoss  or  exercise  any  corporate  jDowers,  except 
such  as  are  necessary  to  the  exercise  of  the  powers  so  enumerated  and  given. 

(a)  The  original  section  hod  the  ■word  "  primary  "  in  place  of  "  prima  facie." 

G24 


COKPORATIONS— GENERAL  PROVISIONS.         5350-5339 

5356.  Banking  eocpres^hj  ivohibited. 

Sec,  356;  No  corporation  shall  create  or  issue  bills,  notes  or  other  evidences 
of  debt,  upon  loans  or  otherwise,  for  circulation  as  money. 

5357.  Misnomer  does  not  invalidate  instrument. 

Sec  357.  The  misnomer  of  a  corporation  in  any  written  instniment  does  not 
invalidate  the  instrument,  if  it  can  be  reasoiiubl}'  asceiiained  from  it  what  cor- 
poration is  intended. 

5358.  Corporation  to  organize  within  one  year. 

Sec  358.  If  a  corjjoration  does  not  organize  and  commence  the  transaction 
of  its  business  or  the  construction  of  its  works  within  one  year  from  the  date  of 
its  incorporation,  its  corporate  powers  cease.  The  due  incorporation  of  any 
company,  claiming  in  good  faith  to  be  a  corporation  under  this  Part,  and 
doing  business  as  such,  or  its  right  to  exercise  cori^orate  jiowers,  shall  not  be 
inquired  into,  collaterall}',  in  any  private  suit  to  which  such  de  facto  corjiora- 
tion  may  be  a  party;  but  such  inquiry  may  be  had  at  the  suit  of  the  state  on 
information  of  the  attorney-general. 

5359.  Increasing  and  diminishing  capital  stock. 

Sec  359.  Every  corporation  may  increase  or  diminish  its  capital  stock  at  a 
meeting  called  for  that  purpose  by  the  directors,  as  follows: 

1.  Notice  of  the  time  and  place  of  the  meeting,  stating  its  object  and  the 
amount  to  which  it  is  proposed  to  increase  or  diminish  the  capital  stock,  must 
be  personally  served  on  each  stockholder  resident  in  the  state,  at  his  place  of 
residence,  if  known,  and  if  not  known,  at  the  place  where  the  princijial  oflice 
of  the  corporation  is  situated,  and  be  published  in  a  newspaper  published  in 
the  county  of  such  principal  place  of  business,  once  a  week,  for  four  weeks 
successively; 

2.  The  capital  stock  must  in  no  case  be  diminished  to  an  amount  less  than 
the  indebtedness  of  the  corporation,  or  the  estimated  costs  of  the  works  which 
it  may  be  the  purpose  of  the  corporation  to  construct. 

3.  At  least  two  thirds  of  the  entire  capital  stock  must  be  represented  by  the 
vote  in  favor  of  the  increase  or  diminution,  before  it  can  be  effected; 

4.  A  certificate  must  be  signed  by  the  chairman  and  secretary  of  the  meeting, 
and  a  majority  of  the  directors,  showing  a  compliance  with  the  requirements  of 
this  section,  the  amount  to  which  the  capital  stock  has  been  increased  or  dimin- 
ished, the  amount  of  stock  represented  at  the  meeting,  and  the  vote  by  which 
the  object  was  accomplished; 

5.  The  certificate  must  be  filed  in  the  office  of  the  county  clerk  where  the 
original  articles  of  incorporation  were  filed,  and  a  certified  copy  thereof  in  the 
office  of  the  secretary  of  state,  and  thereupon  the  capital  stock  shall  be  so  in- 
creased or  diminished; 

6.  The  written  assent  of  the  holders  of  three  fourths  of  the  subscrilied  capital 
stock  shall  be  as  effectual  to  authorize  the  increase  or  diminution  of  the  capital 
stock,  as  if  a  meeting  were  called  and  held;  and  upon  such  wiitten  assent,  the 
directors  may  proceed  to  make  the  certificate  herein  pro\ided  for.  [Amendmciit, 
approved  March  30,  1874;  Amendments  1873-4,  207;  look  effect  July  1,  1874.*" 

(a)  Original  eection-  a  newspaper  piibliBhed  in  the  county  where  the  prin- 

SEC.asg!  Every  corporation  may  increase  or  diminish  cipal   place   of    business  is    located,  for  four  wcclai 

its  capital  stock  as  in  this  section  provided:  BUccesBively;                     „„„„♦.<.>  jl^  o^womf  trin-liirh 

1.  Ly  a  maiority  vote  of  the  directors  there  may  be  A.  The  notice  must  also  contaii.  the  amount  to  which 

cal  ed  Vii^eting  of  the  stockholders,  to  be  convened  it  is  proposed  to  i"<-"'"^«"^;'";">"*^»' '''«jX?inV2^ 

for  the  piupose  of  increasing  or  of  diminishing  the  4.  The  capital  st..ck  "i";    ',^X;;rt,™/^t  w^ 

cBTiitni  ctrw^v-  to  an  amount  less  tlian  the  indebtedness  oJ  tne  corpo- 

Tpei^onal  notice  ot   the  time  and  place  of  such  ^^  ^T^^^'^'^'^^' '^f.^'}^^^;:'^:^ 

meeting,  and  the  object  thereof,  n>ust  be  served  on  be  the  object  or  purpose  ol  the   orpor,^^^ 

each  stockholder  resident  in  this  state;  or.  in   lie;i  5.  At  le.st  four  tuths  ol  aU  the  .apital  s^^^^^^ 

thereof,  the  notice  must  be  published  in  every  issue  of  represented  at  such  meeting,  and  at  least  two  thirds  of 

40  (325 


5360-5361  CIVIL  CODE. 

5360.  Acquisition  of  real  properly. 

Sec.  360.  No  corporation  shall  acquire  or  liold  any  more  real  property  than 
may  be  reasonably  necessary  for  the  transaction  of  its  business,  or  the  construc- 
tion of  its  works,  except  as  otherwise  specially  provided.  A  corporation  may 
acquire  real  property,  as  provided  in  Title  YII,  Part  III,  Code  of  Civil  Pro- 
cedure, when  needed  for  any  of  the  uses  and  purposes  mentioned  in  said  title. 
[Amendment,  approved  March  30, 1874;  Amendments  1873-4,  208;  took  effect  July 
1,  1874.^'' 

[Fur  title  of  Code  of  Civil  Procedure  referred  to,  see  post,  11,237.] 

An  Act  to  aiithoiize  corporations  to  own  and  improve  the  lots  and  houses  in  which  their 

business  is  carried  on. 

Approved  April  1,  187G;  1875-6,  653. 

May  hold  lot,  etc. 

Section  1.  By  unanimous  consent  of  its  members  or  stockholders,  any  corpo- 
ration existing  under  the  laws  of  this  state  may  acquire  and  hold  the  lot  and 
house  in  which  its  business  is  carried  on,  and  may  improve  the  same  to  any 
extent  required  for  the  convenient  transaction  of  its  business. 

Sec  2.  This  act  shall  take  efi'ect  immediately. 

5361.  Consolidation  of  mining  corporations. 

Sec  361,  It  shall  be  lawful  for  two  or  more  corporations  formed,  or  that  may 
hereafter  be  formed,  under  the  laws  of  this  state,  for  mining  purposes,  which 
own  or  possess  mining  claims  or  lands  adjoining  each  other,  or  lying  in  the  same 
vicinity,  to  consolidate  their  capital  stock,  debts,  property,  assets,  and  fran- 
chises in  such  manner  and  upon  such  terms  as  may  be  agreed  upon  by  the 
respective  boards  of  directors  or  trustees  of  such  companies  so  desiring  to  con- 
solidate their  interests;  but  no  such  consolidation  shall  take  j)lace  without  the 
writtt'Ti  consent  of  the  stockholders  representing  two  thirds  of  the  capital  stock 
of  each  company;  and  no  such  consolidation  shall  in  any  way  relieve  such  com- 
panies, or  the  stockholders  thereof,  from  any  and  all  just  liabilities;  and  in 
case  of  such  consolidation,  due  notice  of  the  same  shall  be  given  by  advertising 
for  one  month  in  at  least  one  newspaper  in  the  county  and  state  where  the  said 
mining  property  is  situated,  if  there  be  one  published  therein,  and  also  in  one 
new.spaper  published  in  the  county,  or  city  and  county,  where  the  principal 
place  of  business  of  any  of  said  companies  shall  be.  And  when  the  said  con- 
solidation is  completed,  a  certificate  thereof ,  containing  the  manner  and  terms  of 
said  consolidation,  shall  be  filed  in  the  office  of  the  county  clerk  of  the  county 
in  wliich  the  original  certificate  of  incorporation  of  any  of  said  companies  shall 
be  filed,  and  a  copy  thereof  shall  be  filed  in  the  office  of  the  secretary  of  state. 
Such  certificate  shall  be  signed  by  a  majority  of  each  board  of  trustees  or  direc- 
tors of  the  original  companies;  and  it  shall  be  their  duty  to  call,  Avithin  thirty 
days  after  the  filing  of  such  certificate,  and  after  at  least  ten  days'  public  notice, 
a  meeting  of  the  stockholders  of  all  of  said  companies  so  consolidated,  to  elect 
a  board  of  trustees  or  directors  for  the  consolidated  company  for  the  year  thence 
next  ensuing.     The  said  certificate  shall  also  contain  all  the  requirements  pre- 

e 

the  entire  capital  Ktock   must  vote  in  favor  of  6iicli  in  the  office  of  the  county  clerk  and  one  in  the  office  of 

increi.be  '  r  diminution  hi  l<,re  the  Hauieis  effected;  the  secretary  of  Btate,  as  provided  for  original  articles 

C.  A  certificate,  higncd  and  verilied  by  the  chairman  of  incorporation,  and  thereupon  the  capital  stock  is  so 

and  secretary  of  the  meetm),',  must  hi-  made,  showing  increased  or  diminished, 
a  strii't  compliance  with  all  the  re<iuiri ments  of  this         (a)  Original  section: 

section,  the  amount  to  wliidi  tlie  caidtal   stoiik   has         Sec.  360.  No  corporation  shall  acquire  or  hold  any 

been  increased  or  diminished,  thi-  amount  of  stock  more  real  estate  than  may  he  absolutely  necessary  for 

(and  by  whom  held)  n  presinteil  at  tlie  meeting,  tlie  the  use  of  the  business  conducted  or  the  construction 

vote  by  which  theobjeit  wasaccomplihhed,theamouut  of  their  works,  except  as  specially  provided.    A  cor- 

of  ca]jital  stock  actually  jiald  in,  and  the  amount  of  jjoration  organized  lor  any  purpose  specified  in  siibdi- 

all  debts  and  liabllitjes  of  the  corporation,  and  how  visions  3,  i.  5,  7,  8  and  15,  of  section  l'8H,  may  at(|uiro 

secured.  real  property  as  provided  in  Title  VII,  Part  III,  Code  of 

7.  This  certificate  must  be  Bubscribed  by  a  m.ijority  Civil  Procedure,  when  needed  lor  the  uses  and  i>urposes 

of  the  directors,  and  duplicates  made,  one  to  be  liled  therein  mentioned. 

626 


CORPORATIONS— GENEKAL  PROVISIONS.         53fil-5383 

scribed  by  section  290  of  said  Civil  Code.     [New  section,  approved  Mi  ml,  2i^, 
187G;  A^nendments  181 5-G,  75;  took  effect  from  pas^mrje. 

An  Act  to  add  another  section  to  the  civil  code. 

Approved  March  20,  1875-G;  AmendmentB  1875-C,  75. 

[Sec.  1  contains  the  additional  section  3G1  to  the  Civil  Code  above  iuserted.] 
Sec.  2.  This  act  shall  apply  to  all  corporations  formed  under  the  la-\vs  of  tliis 
state,  whether  formed  under  the  said  Civil  Code,  or  prior  thereto. 
Sec.  3.  This  act  shall  take  effect  from  and  after  its  passage. 

ARTICLE  n. 

RECORDS. 

5377.  Becords,  of  ivhat  and  how  kept. 

Sec  377.  All  corporations  for  profit  are  required  to  keej)  a  record  of  all  their 
business  transactions;  a  journal  of  all  meetings  of  their  directors,  members,  or 
stockholders,  with  the  time  and  place  of  holding  the  same,  whether  regular  or 
special,  and  if  special,  its  object,  how  authorized,  and  the  notice  thereof  given. 
The  record  must  embrace  every  act  done  or  ordered  to  be  done;  who  were 
present,  and  who  absent;  and,  if  requested  by  any  director,  member,  or  stock- 
holder, the  time  shall  be  noted  when  he  entered  the  meeting  or  obtained  leave 
of  absence  therefrom.  On  a  similar  request,  the  ayes  and  noes  must  be  taken 
on  any  proj^osition,  and  a  record  thereof  made.  On  similar  request,  the  ju-otest 
of  any  director,  member,  or  stockholder,  to  any  action  or  proposed  action, 
must  be  entered  in  full— all  such  records  to  be  open  to  the  inspection  of  any 
director,  member,  stockholder,  or  creditor  of  the  corporation. 

5378.  Other  records  to  be  kept  by  corporations  for  profit,  and  others. 

Sec  378.  In  addition  to  the  records  required  to  be  kept  by  the  preceding 
section,  corj)orations  for  profit  must  keep  a  book,  to  be  known  as  the  "  Stock 
and  Transfer  Book,"  in  which  must  be  kept  a  record  of  all  stock;  the  names  of 
the  stockholders  or  members  alphabetically  arranged;  installments  paid  or 
unpaid;  assessments  levied  and  paid  or  unpaid;  a  statement  of  every  alienation, 
sale,  or  transfer  of  stock  made,  the  date  thereof,  and  by  and  to  whom;  and  all 
such  other  records  as  the  by-laws  prescribe.  Corporations  for  religious  and 
benevolent  purposes  must  provide  in  their  by-laws  for  such  records  to  be  kept 
as  may  be  necessary.  Such  stock  and  transfer  book  must  be  kept  open  to  the 
inspection  of  any  stockholder,  member,  or  creditor. 

ARTICLE   III. 

EXAHnXATION  OF  CORPORATIONS,  ETC. 

5382.  Examination  into  affairs  of  corporation  by  state  officers. 

Sec  382.  The  attorney-general  or  district  attorney,  whenever  and  as  often 
as  required  by  the  governor,  must  examine  into  the  affairs  and  condition  of  any 
corporation  in  this  state,  and  report  such  examination,  in  writing,  together  with 
a  detailed  statement  of  facts,  to  the  governor,  Avho  must  lay  the  same  before 
the  legislature;  and  for  that  purpose  the  attorney -general  or  distiict  attorney 
may  administer  all  necessaiy  oaths  to  the  directors  and  officers  of  any  corpora- 
tion, and  may  examine  them  on  oath  in  relation  to  the  affairs  and  condition 
thereof,  and  may  examine  the  books,  papers,  and  documents  belonging  to  such 
corporation,  or  appertaining  to  its  affairs  and  condition. 

5383.  Examination  made  by  the  legislature. 

Sec  383.  The  legislature,  or  either  branch  thereof,  may  examine  into  the 
affairs  and  condition  of  any  corporation  in  this  state  at  all  times;  and,  for  that 

627 


o3S3-:;0C2  CITIL  CODE. 

purpose,  any  committee  appointed  by  the  legislature,  or  either  branch  thereof, 
may  administer  all  necessary  oaths  to  the  directors,  officers,  and  stockholders 
of  such  corporation,  and  may  examine  them  on  oath  in  relation  to  the  affairs 
and  condition  thereof;  and  may  examine  the  safes,  books,  papers,  and  docu- 
ments belonging  to  such  coi-poration,  or  pertaining  to  its  aifairs  and  condition, 
and  compel  the  production  of  all  keys,  books,  papers,  and  documents  by  sum- 
mary process,  to  be  issued  on  ai^plication  to  any  court  of  record  or  any  judge 
thereof,  under  such  rules  and  regulations  as  the  court  may  prescribe. 
5384.   Chaph'r  and  arliclc  may  he  repmled. 

Sec.  38-i.  The  legislature  may  at  any  time  amend  or  repeal  this  part,  or  any 
title,  chapter,  article,  or  section  thereof,  and  dissolve  all  corporations  created 
thereunder;  but  such  amendment  or  repeal  does  not,  nor  does  the  dissolution 
of  any  such  corporation,  take  away  or  impair  any  remedy  given  against  any 
such  corporation,  its  stockholders  or  officers,  for  any  liability  which  has  been 
previousl}'  incuiTed. 

ARTICLE   IV. 

JUDGMEXT  AGAIKST  AND  SALE  OF  CORPOEATE  PROPEKTY. 

5388.  Franchise  may  be  i^old  under  execution. 

Sec.  388.  For  the  satisfaction  of  any  judgment  against  a  corporation  author- 
ized to  receive  tolls,  its  franchise  and  all  the  rights  and  privileges  thereof  may 
be  levied  upon  and  sold  under  execution,  in  the  same  manner  and  with  like 
effect  as  any  other  property.  [Amendment,  ai^proved  March  30,  1874;  Amend- 
menis  1873-4,  208;  took  effect  July  1,  1874.'"' 

5389.  Purchaser  to  transact  business  of  corporation. 

Sec  389.  The  purchaser  at  the  sale  must  receive  a  certificate  of  purchase  of 
the  franchise,  and  be  immediately  let  into  the  possession  of  all  property  neces- 
sary for  the  exercise  of  the  powers  and  the  receijit  of  the  proceeds  thereof,  and 
must  thereafter  conduct  the  business  of  such  corporation,  with  all  its  j)owers 
and  privileges,  and  subject  to  all  its  liabilities,  until  the  redemption  of  the  same, 
as  hereinafter  provided. 

5390.  Purchaser  may  recover  penalties,  etc. 

Sec.  31)0.  The  purchaser  or  his  assignee  is  entitled  to  recover  any  penalties 
imposed  by  law  and  recoverable  by  the  corporation  for  an  injury  to  the  franchise 
or  property  thereof,  or  for  any  damages  or  other  cause,  occurring  during  the 
time  he  holds  the  same,  and  may  use  the  name  of  the  cori:)oration  for  the  pur- 
pose of  any  action  necessary  to  recover  the  same.  A  recovery  for  damages  or 
any  penalties  thus  had  is  a  bar  to  any  subsequent  action  by  or  on  behalf  of  the 
cori^oratiqn  for  the  same. 

5391.  Corporation  to  retain  powers  after  sale. 

Sec.  391.  Tlie  corporation  whose  franchise  is  sold,  as  in  this  article  provided, 
in  all  other  respects  retains  the  same  powers,  is  bound  to  the  discharge  of  the 
same  duties,  and  is  liable  to  the  same  penalties  and  forfeitures,  as  before  such 
sale. 

5892.   liedernption  of  franchise. 

Sec.  392.  Tlie  corporation  may,  at  any  time  within  one  year  after  such  sale, 
redeem  tlie  franchise,  by  paying  or  tendering  to  the  purchaser  tliereof  the  sum 
paid  therefor,  witli  ten  per  cent,  interest  thereon,  but  without  any  allowance  for 
the  toll-wliich  he  may  in  the  meantime  have  received;  and  upon  such  jmyment 
or  tender  the  franchise  and  all  the  rights  and  privileges  thereof  revert  and  be- 
long to  the  corporation,  as  if  no  such  sale  had  Ijeen  made. 

(a)  The  original  section,  InstfRi]  of  "  authorized  to  receive  toUs,"  liad  the  words"  organized  for  i)ront." 

628 


COKPORATIONS-GENERAL  PROVISIONS.         5393-5403 

5393.  Sale,  under  execution,  xohere. 

Sec.  393.  The  sale  of  any  franchise  under  execution  must  he  made  in  the 
county  in  which  the  corporation  has  its  i)rincipal  i)hice  of  business,  or  in  wljich 
the  property,  or  some  portion  thereof,  upon  which  the  taxes  are  paid,  is  situ- 
ated. [Amendment,  approved  JIarch  30,  1874;  Amendments  1873-4  209 •  took 
effect  July  1,181 4:  y^ 

CHAPTER  IV. 

EXTENSION  AND   DISSOLUTION   OF   COBrORATIONS. 

5399.  Proceedings  to  dinincorporcde. 

Sec.  399.  The  dissokition  of  corporations  is  provided  for: 

1.  If  involuntary— in  Chapter  V  of  Title  X,  Part  II,  of  the  Code  of  Civil  Pro- 
cedure ; 

2.  If  voluntary— in  Title  VI,  Part  III,  of  the  Code  of  Civil  Procedure.  (See 
post,  10,802  and  11,227.] 

5400.  On  dissolution,  directors  to  be  trustees  for  creditors. 

Sec.  400.  Unless  otlier  persons  are  ai)pointed  by  the  court,  the  directors  or 
managers  of  the  affairs  of  such  corporation  at  the  time  of  its  dissolution  are 
trustees  of  the  creditors  and  stockholders  or  members  of  the  corporation  dis- 
solved, and  have  full  power  to  settle  the  affairs  of  the  corporation. 

5401.  May  extend  term  of  existence. 

Sec.  401,  Every  corporation  formed  for  a  period  less  than  fifty  years  may,  at 
any  time  prior  to  the  expiration  of  the  term  of  its  corijorate  existence,  extend 
such  term  to  a  period  not  exceeding  fifty  years  from  its  formation.  Such  exten- 
sion may  be  made  at  any  meeting  of  the  stockholders  or  members,  called  by  the 
directors  expressly  for  considering  the  subject,  if  voted  by  stockholders  repre- 
senting two  thirds  of  the  capital  stock;  or  by  two  thirds  of  the  members;  or 
may  be  made  upon  the  written  assent  of  that  number  of  stockholders  or  mem- 
bers. A  certificate  of  the  proceedings  of  the  meeting  upon  such  vote,  or  upon 
such  assent,  shall  be  signed  by  the  chairman  and  secretary  of  the  meeting  and 
a  majority  of  the  directors,  and  be  filed  in  the  o£&ce  of  the  count}'  clerk,  where 
the  original  articles  of  incorporation  were  filed,  and  a  certified  coi:)y  thereof  in 
the  office  of  the  secretary  of  state,  and  thereujoon  the  term  of  the  corporation 
shall  be  extended  for  the  specified  period.  [Amendment,  approved  Alarrli  30, 
1874;  Amendments  1873-4,  209;  took  effect  July  1,  1874.''" 

[Sec.  402^"^  was  repealed  by  act  approved  March  30,  1874;  Amendments 
1873-4,  209;  took  effect  July  1,  1874.] 

5403.   Title  I  to  apply  to  all  corporations,  ivith  certain  exceptions. 

Sec.  403.  The  provisions  of   this  title  are  applicable  to  every  corporation, 
unless  such  corporation  is  excejoted  from  its  operation,  or  unless  a  sjpecial  pro- 
la)  Original  section:  (c)  Repealed  set-tion: 

Sec.  :i9.i.  The  levy  and  sale  of  any  franchise  under         Sec.  itfi.  AH  corporations  may  continue  their  exist- 

execution  may  be   had  iu  any  county  in  which  the  enco  for  an  additional  period,  not  excetdiut'tifty  years, 

president  or  any  director,  the  treasurer  or  the  secre-  by  tiling  a  cirtiticate,  verified  by  the  alli.laxif  .f  the 

tary  of  the  corporation  may  reside,  or  iu  which  the  president  and  secretary,  settin},'  furth  that,  at   u  meet- 

corporation  has  its  principal  place  of  business.  ing  of  four  fifths  of  the  nienibirti  or  stork,  and  ■>u  a 

(6)   Original  section:  two  thirds  vote  thereof,  it  was  determimd  to  ccintiniie 

Sec.  4of.  Every  corporation  heretofore  formed,  for  sucli  corporation  for  such  additional  length  of  time; 

any  purpose  enumerated  in  this  title  for  which  cor-  the  meeting  of  the  stockholders  or  members  to  be  had 

porations  may  be  formed,  for  a  period  of  time  less  than  after  notice  thereof,  pnblislie<l  for  four  weeks  in  some 

fifty  years,  may,  at  any  time  prior  to  the  expiraticjn  of  newspaper  in  the  county  where  tlie  ))rincipal  olhcu  of 

the  term  of  its  corporate  existence,  extend  such  term  tlie  corporation  is  located,  giving  the  tune  and  idace 

to  a  period  not  exceeding  fifty  years  from  its  forma-  of  meeting:  or,  iu  lieu  thereof,  personal  nntice  ol  Bu.-h 

tion.     Such  extension  must  be  made  at  a  meeting  of  time  and  place  of  meeting  may  be  .served  on  all  stock- 

the  stockholders  or  members,  after  such  order  of  the  holders  or  members  resident  in  this  state— the  n.  tire 

directors  and  notice   thereof,  with  such   amount  of  to  specify  the  object  of  the  meeting  and  the  lengtli  ot 

capital  stock  or  number  of  members  represented,  and  time  for  which  it  is  proposed  to  continue  the  corjiora- 

such  affirmative  vote  thereof,  as  required  herein  for  tion. 
the  increase  or  diminution  of  the  capital  stock,  and 
filing  a  certificate  thereof  in  the  same  offices  where 
their  articles  of  incorporation  are  filed. 

629 


5403-5414  CIYIL  CODE. 

vision  is  made  in  relation  thereto,  inconsistent  with  some  provision  in  this  title, 
in  Avhich  case  the  special  provision  prevails. 

An  Act  iu  relation  to  foreign  corporations. 

Approved  April  1,  1872;  1871-2,  826, 

Foreign  corporations  to  dcsifjnate  per.-<on  upon  iv]iom  jjrocess  may  be  served. 

Sectiox  1.  Eveiy  cori^oration  heretofore  created  by  the  laws  of  any  other 
state  and  doing  business  in  this  state,  shall,  within  one  hundred  and  twenty 
days  after  the  passage  of  this  act,  and  an}'  corporation  hereafter  created  and 
doing  business  in  this  state,  within  sixty  days  from  the  time  of  commencing  to 
do  business  in  this  state,  designate  some  person  residing  in  the  county  in  which 
the  prinfii)al  place  of  business  of  said  corporation  in  this  state  is,  upon  Avhom 
process  issued  by  authority  of  or  under  any  law  of  this  state  may  be  served,  and 
M-ithin  the  time  aforesaid  shall  file  such  designation  in  the  office  of  the  secretary 
of  state;  and  a  copy  of  such  designation,  duly  certified  by  said  officer,  shall  be 
e^•idence  of  such  aj^pointment;  and  it  shall  be  lawful  to  serve  on  such  jierson  so 
designated  any  jn'ocess  issued  as  aforesaid.  Such  service  shall  be  made  on  such 
person  in  such  manner  as  shall  be  prescribed  in  case  of  service  required  to  be 
made  on  foreign  corj^orations,  and  such  service  shall  be  deemed  to  be  a  valid 
service  thereof. 

Penalty  for  failure  to  designate. 

Sec.  2.  Every  corporation  created  by  the  laAVs  of  any  other  state  which  shall 
fail  to  comjjly  with  the  provisions  of  the  first  section  of  this  statute  shall  be 
denied  the  benefit  of  the  statutes  of  this  state  limiting  the  time  for  the  com- 
mencement of  civil  actions. 

Privileges  on  comjyliance. 

Sec  3.  Every  corporation  created  by  the  laws  of  any  other  state  which  shall 
comply  Avith  the  provisions  of  the  first  section  of  this  statute  shall  be  entitled  to 
the  benefit  of  the  statutes  of  this  state  limiting  the  time  for  the  commencement 
of  civil  actions. 


TITLE   II. 


Imwxmit  (Torporatioii 


Chapter  I.  Gexeu/VL  PE0v^sI0NS 5414 

II.  Fire  and  Marine  Insurance  Corporations 5424 

III.  Mutual  Life,  Health,  and  Accident  Insurance  Corporations  5437 

CHAPTEE  I. 

GENERAL   PROVISIONS. 

5414.   Subscriptions  to  capital  stock  opened,  and  how  collected. 

Sec.  414.  After  the  secretary  of  state  issues  the  certificate  of  incorporation, 
as  provided  in  Article  I,  Chapter  I,  Title  I,  of  this  Part,  the  directors  named 
in  the  articles  of  incorj^oration  must  proceed  in  the  manner  specified,  or  in  their 
by-laws,  or  if  none,  then  in  such  manner  as  they  may  hy  order  adopt,  to  open 
Ijooks  of  subsci-iption  to  the  capital  stock  then  unsubscribed,  and  to  secure  sub- 
scriptions to  the  full  amount  of  tlie  fixed  capital;  to  levy  assessments  and  in- 
stallments thereon,  and  to  collect  the  same,  as  in  Chapter  II  of  Title  I  pro- 
vided. 

•G30 


INSUEANCE  CORPORATIONS.  5415-5419 

5415.  Purchase  and  conveyance  of  real  esiaie. 

Sec.  415.  No  insurance  coi'poration  must  purchase,  hold,  or  convey  real  estate, 
except  as  hereinafter  set  forth,  to  wit: 

1.  Such  as  is  requisite  for  its  accommodation  in  the  convenient  transact  i<iii  of 
its  business,  not  exceeding  in  value  one  hundred  and  fifty  thousand  dollars; 

2.  Such  as  is  conveyed  to  it,  or  to  any  person  for  it,  by  way  of  ni()rt;^M^''e  or 
in  trust,  or  otherwise,  to  secure  or  provide  for  the  payment  of  loans  previously 
contracted,  or  for  moneys  due; 

3.  Such  as  is  purchased  at  sales  upon  deeds  of  trust  or  judgments  obtained 
or  made  for  such  loans  or  debts; 

4.  Such  as  is  conveyed  to  it  in  satisfaction  of  debts  previously  contracted  in 
the  course  of  its  dealings. 

All  such  real  estate  so  acquired,  which  is  not  req\iisite  for  the  accommodation 
of  such  corporation  in  the  ti'ansaction  of  its  business,  must  be  sold  and  dis- 
posed of  within  five  years  after  such  corporation  acquired  title  to  the  same. 
No  such  real  estate  must  be  held  for  a  longer  period  than  five  years,  unless  the 
corporation  first  procures  a  certificate  from  the  insurance  commissioner  that  the 
interest  of  the  corporation  will  sufl^'er  materially  by  a  forced  sale  of  such  real 
estate,  in  which  event  the  time  for  the  sale  may  be  extended  to  such  time  as  the 
insurance  commissioner  directs  in  the  certificate. 

5416.  Policies,  how  issued  and  by  ichom  signed. 

Sec.  416.  All  policies  made  by  insurance  corporations  must  be  subscribed  by 
the  president  or  vice-president,  or  in  case  of  the  death,  absence  or  disability  of 
those  ofiicers,  by  any  two  of  the  directors,  and  countersigned  by  the  secretary 
of  the  corporation.  All  such  j^olicies  are  as  binding  and  obligatory  upon  the 
corporation  as  if  executed  over  the  corporate  seal. 

5417.  Dividends,  of  what,  and  when  declared. 

Sec.  417.  The  directors  of  every  insurance  corporation,  at  such  times  as  their 
by-laws  jDrovide,  must  make,  declare,  and  pay  to  the  stockholders  dividends  of 
so  much  of  the  net  profits  of  the  corporate  business  and  interest  on  capital 
invested  as  to  them  appears  advisable ;  but  the  moneys  received  and  notes 
taken  for  premium  on  risks  which  are  undetermined  and  outstanding  at  the 
time  of  making  the  dividend  must  not  be  treated  as  profits,  nor  divided,  except 
as  provided  in  Chapter  II  of  this  title. 

5418.  Directors  liable  for  loss  on  insurance  in  certain  cases. 

Sec.  418.  If  any  insurance  corporation  is  under  liabilities  for  losses  to  an 
amount  equal  to  its  capital  stock,  and  the  president  or  directors,  after  knowing 
the  same,  make  any  new  or  further  insurance,  the  estates  of  all  who  make  such 
insurance,  or  assent  thereto,  are  severally  and  jointly  liable  for  the  amount  of 


§  419.     Every  company,  corporation,  or  association  here-     ousand  dollars. 

f^^s^Z^a^"Zf^^f-J'f""  "''■^''''  1  T  ^^'"'"r"'  '^'^  oeiation,  except  mutual  life,  health, 
iransaction  or  business  in  fare,  marine,   inland  navigation,  or  '  ^ 

life  insurance,  must  have  a  subscribed  capital  stock  equal  to  at  )e  formed  or  organized,  under  the 
least  two  hundred  thousand  dollars,  twenty-five  per  cent,  of  usiness  in  any  kind  of  insurance, 
which  must  be  paid  in  previous  to  the  issuance  of  any  policy,  .,    ■,  i  .        i.  i        j.  j.        i     ,   i„^;i 

and  the  residue  within  twelve  months  from  the  day  of  filing  ''V^^^^  ^^^^^  ^^  ^^  ^^^^^  *'^'°  bundled 
the  certificate  of  incorporation.  No  person,  corporation,  or  )in;  twenty-five  per  cent,  whereof 
association  organized  or  formed  under  the  laws  of  any  other  ^n  „„„  iwjV.tt  rm^l  +l,p  vpdflnp  bv 
State  or  country,  as  a  stock  company,  must  transact  anv  such  °*  ^''^  l^""^'"^^  '  ^"""^  },  J^^.^,.^^ 
insurance  business  in  this  State,  unless  such  person,  corpora-  'V'elve  months  from  the  day  01  tiling 
tion,  or  association  has  a  paid  up  capital  stock  equal  to  at  least  ridual  or  person,  or  corporation, 
two  hundred    thousand   dollars   in  available  cash   assets,  over  '        ,  '     ,      i     ^^.^,,,„„,. 

and  above  all  liabilities  for  losses  reported,  expenses,  taxes,  O^'  COUntiy  as  a  stock  COmpan\ , 
and  reinsurance  of  all  outstanding  risks,  as  provided  in  sec-  3  in  this  state,  except  on  live  stock, 
tion  six  hundred  and  two  of  the  Political   Code  of  this  State.      ^  -^^1   S^ock  equal   to  at  least 

^or  must  any  person,  corporation,  or  association,  organized  or  ^    v..».pi>.cv      ^  i 

formed  under  the  laws  of  any  other  State  or  country  as  a  mu-  ates  gold  COm,  aud  has  available 
tual  insurance  company,  transact  any  such  insurance  business' 
in  this  State,  unless  such  person,  corporation,  or  association 
possesses  available  cash  assets  equal  to  at  least  two  hundred 
thousand  dollars,  over  and  above  all  liabilities  for  losses  re- 
ported, expenses,  taxes,  and  reinsurance  of  all  outstanding 
risks,  as  provided  :n  said  section  six  hundred  two  of  the  Polit- 
tical  Code  of  this  State.     [In  effect,  April  1,  1878.] 


^  420.     Every  company,  corporation,  or  aseociation  here- 
after formed  or  organized  under  the  laws  of  this  State  for  the 
tran-action  of  buftinef-fi  in  any  kind  of  infiurance  not  enuraer- 
al*d  in  section  419  of  the  Civil  Code,  muBt  have  a  Bubfecribed 
c«pital  Htock  equal  to  at  least  one  hundred  thouBand  dollars, 
which  must    be    paid    in  at  the  times   and  in  the  manner  pre-' 
scribed  for  the  payment  of  the  capital  HUjck  of  a  corporation 
organized  under   section    four   hundred  and   nineteen  of  said 
Civil  Code.     Xo  company,  corporation,  or  aKsociation,  formed 
or  organized  under  the  laws  of  any  other  State  or  country  as  a 
stock  company,  rnugt  tram-act  any' such   insurance  buginegs  in 
this  State  without  a  paid  up  capita!  rtock  of  not  Icf-s  than  one 
hundred  thousand  dollars   in   available   (sn-.h   aesets-,  over  and 
aUjve  all  liabilities  for  losses   reported,  expenses,  taxes,  and 
reiDi?urance  of  all  ouutanding  risks,  as  provided  in  section  602 
of  the  Political  Code  of  this  Sute.     Nor  must  any  company, 
corporation,  or  association,  formed  or  organized  under  the  laws' 
of  any  other  Sute  or  country  as  a  mutual  insurance  company, 
transact  any  such  insurance  business  in  this  State  unless  such 
company,  corporation,  or  association  possesses  available  cash 
assets  efjual  to  at  least  one  hundred  thousand  dollars  over  and 
above  all  liabilities  for  loci-es  reported,  expenses,  taxes,  and  re- 
insurance of  all  outstanding  risks,  as  provided  in  said  section  six 
hundred  and  two  of  the  Political  Code  of  this  State.  [In  effect 
April  1,  1676.]  ' 


1* 


hundred  tliousarid  dollars  in 

sses,  reported  expenses,  taxes, 

tided  in  sections  six  hundred 

oust  any  individual  or  person, 

under  the  laws  of  any  other 

transact  any  kind  of  insurance 

s  such  person  or  coqx.>ration 

hundred  thousand  dollars  in 

;ilities  for  losses  reported,  ex- 

^  risks,  as  provided  in  section 

I  state.    [Amendment,  approved 

feci  sixtieth  day  after  paaHafje.^'"^ 


X)I1P0BATI0X8. 


I  paid  in  tvjelve  raordh?. 

3  or  marine  insurance  corpora- 
tion must  bepaia  up  m  casn  wituia  twcivc  xxx-^xxi-hs  from  the  filing  of  the  articles 
of  incorporation,  and  no  policj'  of  inswance  niusi  be  issued  or  risk  taken  until 
twent^'-five  per  cent,  of  the  whole  capital  stock  is  paid  up. 

5425.  Certificate  of  ca'[/iial  ntock  paid  up  to  be  filed,  and  when. 

Sec.  425.  The  president  and  a  majority'  of  the  directors  must,  within  thirty 
days  after  the  payment  of  the  twenty-five  per  cent,  of  the  capital  stock,  and 
also  within  thirty  days  after  tlie  payment  of  the  last  installment  or  assessment 
of  the  capital  stock  limited  and  fixed,  prepare,  subscribe,  and  swear  to  a  certifi- 
cate setting  forth  the  amount  of  the  fixed  capital  and  the  amount  thereof  paid 
up  at  the  times  respectively  in  this  section  named,  and  file  the  same  in  the 
office  of  the  county  clerk  of  the  county  where  the  principal  place  of  business 
of  the  corporation  is  located,  and  a  duplicate  thereof,  similarly  executed,  with 
the  insurance  commissioner. 

5426.  Properly  v:hlch  may  he  insured. 

Hec.  42C.  Every  corporation  formed  for  fire  or  marine  insurance,  or  both, 

•itViin  the  scope  of  its  articles  of 


thiH  <?.!»%     [';^Z        '  "''■''^/^'''  ^^^«^»i^'^='l  >^n'J'r  the  laws  of 
!  '  V  •  '    '•*"'''*<=^"'"  "f  f^"«i"'--H«  in  any  kind  of  insur- 

anr:e  may  mvest  the.r  capital  and  accumulations  in  the  follow- 
lufi  named  n-.riiniiHH : 

nf  rhlVni'l  ""^r'^rchaHe  of  or  loans  upon  interest-bearing  bonds 
oJ  the  Lnit«<i  .>uu;h  Government ; 

'/■««— In  the  purchase  of  or  loans  upon  interest-bearing  bonds 

nre^—Ir.  the   purchase  of  or  loans   upon  interert-bf^rinr, 
bont ;  ^•''''^^^'"'»  °o»  >n  default  for  interest  on    such 

F^mr-ln  loans  ufK.n  unincumbered  real  propertv  or  unon 
nerchand.se  .n  warehouse,  worth  at  least  one  hundred  r^r  cent 
more  than  the  amount  loaned.  ' 

But  no  investment  in  the  securities  named  in  subdivisions 
one  two.  and  three  of  thi.  section  must  be  made  in  amount  ex! 
ceeding  the  par  value  of  such  securities,  nor  exceedinrthe^r 
market  value.     [In  effect,  April  1    1878  1  "^^^^^^^'ng  their 


ration  may,  by  its  board  of 

in  loans  upon  real  or  per- 

;,  or  other  securities,  but  uo 

a,  or  on  the  notes  or  obliga- 

aj/proved   March   30,    1874; 


08  must  never  take,  on  any 
isurance  against  fire,  a  sum 
aid  in,  and  intact  at  the  time 


of  t). 
ki/j'I 

h-:Tih 
doll.. 

wIj<;" 

\>',Uiy.  iii 
ia>tiillni<  /.^ 
iitg  the  ten. 


ve  ni'/nthc  froin  tht 
'jryjTtXVju.    Hut  iu\i->X.  any  iu- 


brgoD  be  perrnltt<><l  to  transact  buKinefis 
ny  non-renl'lent  person  or  <-orj)Oration, 
'  laws  wnetfier  loreij^ri  or  rloiij<f»>tic.  In  any  kind  of  InHur^inc*-, 
..   8Tjy     exc-pt  on  liv<-  aUxik,  unleKH  hik  It  in-.rivui  or  (:orj<oratl'<n 

a  hub-       IHMhUnHeH  hVtlilHhlf.  l-Mh  HhM-.tH,  fXilUhiV:  Of  Hi<i<k  Dot'*, 

tiioiihand     to  the  araount  of  at  leabt  one  hu   dr'-d  thouhai.d  d'/llars 

:  p';r  <<rnt.      in  f'uiUui  Staten  gold  coin,  over  and  aJx^ve  all  liabilitiew. 

-,ni)<:  of  any  ('/I  The  original  >>e'.ti<yTi,  inHtcad  of  "or  on  the  notrrs 

'/T    obligationH  of  any  of  Its  stockholders,"   had  the 

words '  as  security." 


r   quarterly 
le  day  of  fil- 


C32 


INSURANCE  CORPORATIONS.  5428-5430 

of  taking  such  risk,  witlioTit  reinsnviiig-  tlio  oxcoss  aLovo  one  tcjilh.  [Amoid- 
mcnl,  approved  March  30,  1874;  AtnetKlinculs  1873  4,  210;  look-  i-(/'rii  JuU/  1, 
1874."" 

5$  429.     No  corporation   f'ofnu'il  lu'ivat'tiT  uiKior  llu-  laws  of 
this  State,  and  traiisactiii'^  tire,  maiiiic,  iiilaiid  navi-^atioii  insur- 

auct'  hiisiiicss,  or  iiisuiaiico  j)i()vi(i(i(i  tor  l)y  section  lour  liundieil  SUVailCG  l)UsilieR.S  Under 

and  twenty  of  tliis  Code,  must  make  any  dividends  except  from  fioju  itlolilK    rC'luuiniucr 

profits  renmininj;  on  hand  after  ictainini;  unimpaired  : 

1.  The  entire  subscribed  capital  stock  ; 

2.  All  the  iHcmiums  received  or  reeeivai)le  on  outstandin<; 

marine  or  inland  risks,  except  marine  lime  risks  ;  t  •  •    i        i 

3.  A  fund  e.iual  to  one-half  of  the  amount  of  all  pren.iums  "'^'"-  "'^'""^'^  '''    '"^'^"'^ 
on  nil  other  riska  not  terminated  at  the  time  of  making  such 

dividend;  iiiiiiins  on  flit'  ri.sks  unci 

4.  A  sum  sulncient  to  pay  all  losses  reported  or  in  course  of  l     r    •  i       i 
settlement,  and  all  liabilities  for  expenses  and  taxes,  f In  eft'eet,                     sucii  (lividt'lul; 

April  I,  1878.]  urse  of  settlenient,  and 

ail  lux  hill  tics  lor  expenses  and  taxes. 

5430.  A)ii()iinli<  /o  be  reserved  by  comjwnics  xo'dh  less  lluoi  tiro  hundred  thoiisand 
dollars  capital. 
Sec.  430.  No  fire  or  marine  insurance  corporation,  with  a  suLscrihed  capital 
of  less  tliJin  two  hundred  tliousand  dollars,  must  declare  any  dividends,  except 
from  proiits  remaining  on  hand  after  reserving: 

1.  A  sum  necessary  to  form,  with  the  subscribed  capital  stock,  the  aggregate 
sum  of  two  hundred  thousand  dollars; 

2.  All  the  premiums  received  or  receivable  on  outstanding  murine  or  inland 
risks,  except  nnirine  time  risks; 

3.  A  fund  equal  to  one  half  the  amount  of  all  premiums  on  lire  risks  and 
marine  time  risks  not  terminated  at  the  time  of  making  such  dividend; 

4.  A  Slim  sufficient  to  pay  all  losses  reported  or  iu  course  of  settlement,  and 

nnd  n^^. ,  ^e   ^■'^!'.';"''l^^'""'  ''»nne<l' under  the  laws  of  this  State, 
nn.l  tiansactm^'  life  insurance  business,  must  make  anv  divi 

dends,  except  from  proiits  renniinin-  on  hand  after  retaining  '"'"  '^"^  P^'Tose  ..f  discovormg 

ummpaired  :  "  u  conllagration. 

r>«,._Thc  entire  capital  stock  • 

pr^;j:;;:i;';;::;;;!J:;:;;::r;i  »:-;?■£'«  i;;;!;;;;;;.  .f..vo  o,^a„i.oa  „na  now 

ii-xperiencc  Table  of  Mortalitv,  an.l  interest  at  the  rate  of  four  *ll*J  l^WS  of    this  state,  fOF 

and  one-hall  per  cent,  per  annum.     [In  effect,  April  1,  187.S.]  d    of    saving   property  and 

thill  tiiiy  miiniciiml  corpo- 
ration of  this  state,  shall  have  power,  at  its  own  proi)cr  cost  and  exiicnso,  to 
maintain  a  corps  of  men,  Avith  proper  officers,  ecpiipiuHl  with  the  necessary 
macliinery  and  apparatus  therefor,  whose  duty  it  shall  be,  so  far  as  practicable, 
to  discover  and  ])revent  tires  and  save  pr<^pcrty  and  humtm  life  from  contlagni- 
tion;  and  for  the  cllVictivo  discharge  of  such  duties,  power  and  authority  is 
hereby  granted  such  corps  to  enter  any  building  on  lire,  or  in  Avliich  ju-operty 
is  on  lire,  or  which  such  corps  or  any  officer  thereof  shall  deem  to  be  immeili- 
ately  exposed  to  any  existing  tiro,  or  in  danger  of  taking  lire  from  a  burning 
building,  and  to  remove  or  otherwise  save  and  i)rotect  from  c.)nll)igiiition  or 
damage  by  water  any  ])roperty,  during  and  immediately  after  such  tire;  pro- 
vided, ]iow(!ver,  that  nothing  in  tliis  act  shall  be  so  construed  as  in  any  degree 
to  less(vn,  imjitiir,  or  interfere  with  the  powers,  privileges,  duties,  or  authority 
of  the  regiihir  tire  department  of  such  municipality;  and  provided  further,  thnt 
no  act  of  such  corps  simll  justify  tiny  owmn-  of  any  building  ov  property  in 
abandoning  such  building  or  property. 

■  („)  The  ,ni,'innl  section  l,ml  I  he  xvords  "  er  cither  "  nftrr  ■•  eori-oratiouB."  but  .UJ  nut  liayo  U.o  WorUB  "  anJ 
liiliu'tul  thti  liiiio  of  tiiklug  tiiu'h  risk." 

C33 


6430-5437  CIVIL  CODE. 

Privileges  granted  to  fire  patrol  corps. 

Sec.  2.  Such  corporation,  with  its  officers  and  corps,  when  i-unning  to  a  fire, 
shall,  with  its  horses,  vehicles,  and  salvage  apparatus,  have  the  same  right  of 
way  as  is  or  may  be  bestowed  by  any  ordinance  of  the  municipality  or  law  of 
this  state  upon  the  regular  fire  department  of  the  municipality  wherein  such 
corporation  is  acting;  provided,  that  the  rights  of  such  fire  dej)artment  shall 
always  bo  paramount  to  the  rights  of  said  coriDoration.  All  ordinances  now 
existing  or  which  may  hereafter  be  passed  by  the  mvmicijial  authorities  of  any 
city  and  county,  or  of  any  incorporated  city  or  town  wherein  such  a  corporation 
may  carry  on  business,  and  all  laws  of  this  state  ajDplicable  to  such  city  and 
county,  or  city  or  town,  for  the  conviction  or  punishment  of  any  person  or  per- 
sons willfully  or  carelessly  obstructicg  the  progress  of  the  apparatus  of  the  fire 
department  of  such  city  and  county,  or  city  or  town,  while  going  to  a  fire,  or 
of  any  person  or  jjei'sons  willfully  or  carelessly  injuring  any  animal  or  property 
of  said  fire  dei3artment,  shall  be  equally  applicable  to  any  person  or  persons 
willfully  or  carelessly  obstructing  the  progress  of  the  ajijDaratus  of  such  corpo- 
ration while  going  to  a  fire,  and  to  any  j^erson  or  persons  who  shall  willfully  or 
carelessly  injure  any  animal  or  proj)erty  of  such  corporation;  and  said  laws  and 
ordinances,  and  their  penalties,  may  be  enforced  in  the  same  coui-ts  and  in  the 
same  manner,  and  with  equal  force  and  effect,  as  in  the  case  of  the  fire  depart- 
ment. 

Costs  and  expenses  of  maintaining  organization,  lioiv  assessed. 

Sec.  3.  Each  such  corporation  shall  have  j^ower  to  assess  its  members  for  the 
cost  of  establishing  and  maintaining  its  organization,  upon  the  basis  of  insur- 
ance business  transacted  by  such  members  within  the  municipality  where  such 
corporation  is  carrying  on  business,  and  in  such  manner  as  is  or  may  be  provided 
for  by  its  by-laws,  and  all  assessments  so  made  may  be  duly  enforced  under 
and  by  virtue  of  the  laws  of  this  state.  For  the  purpose  of  ascertaining  the 
basis  of  such  assessments  such  corporation  shall  have  j^ower  to  require  and 
demand  from  each  and  every  member  thereof,  quarterly  statements,  sworn  to 
by  the  president  or  secretary,  in  case  the  insurance  company  or  member  on 
which  the  demand  is  made  shall  be  incori:)orated  under  the  laws  of  this  state, 
or  otherwise  by  the  agent  of  the  company  who  shall  be  recognized  as  such  by 
the  insurance  commissioner  of  this  state,  which  quarterly  statement  shall  show 
the  aggregate  amount  of  premiums  received  and  receivable  for  fire  insurance 
upon  proi)ei-ty  within  such  municipality,  by  said  company  or  member,  diu-ing 
the  three  months  next  preceding,  resj^ectively,  the  thirty-first  day  of  March, 
the  thirtieth  day  of  June,  the  thirtieth  day  of  September,  and  the  thirty-first 
day  of  December,  in  each  year,  and  a  demand  by  the  secretary  or  treasurer  of 
such  corporation,  made  within  fifteen  days  after  the  termination  of  any  such 
quarter  of  a  year,  as  hereinabove  set  forth,  shall  be  considered  the  demand 
herein  provided  for,  and  any  member  who  shall  fail  to  make  such  statement 
within  ten  days  after  such  demand,  shall,  for  each  day's  delay  after  such  ten 
days,  forfeit  ten  dollars,  to  be  added  to  such  member's  next  assessment,  and 
payment  thereof  to  be  enforced  in  like  manner  as  is  jn-ovided  for  enforcing 
payment  of  assessments. 

Sec.  4.  This  act  shall  take  effect  and  be  in  force  from  and  after  its  i:)assage. 

CHAPTEE  III. 

MUTUAL   LIFE,    IIF.ALTJI   AND   ACCIDENT  INSURANCE   CORPORATIONS. 

5437.   Capital  stock — Guarantee  fund. 

Sec.  437.  Everj'  coi-jioration  formed  for  the  purpose  of  mutual  insurance  on 
the  lives  or  health  of  jiersons,  or  against  accidents  to  persons  for  life  or  any 

634 


INSUKANCE  CORPORATIONS.  5437-5440 

fixed  period  of  time,  or  to  purcluise  and  sell  annuities,  must  have  a  ciqtUn]  stock 
of  not  less  than  one  Luudred  thousand  dollars.  It  must  nut  make  any  insur- 
ance upon  any  risk  or  transact  any  other  business  as  a  corporation  until  its 
capital  stock  is  fully  paid  up  in  cash,  nor  until  it  lias  also  obtained  a  fund,  to 
be  known  as  a  "  Guarantee  Fund,"  of  not  less  than  two  hundred  and  fifty  thou- 
sand dollars,  as  hereinafter  provided.  If  more  than  the  retpiisite  ain'ouiit  is 
subscribed,  the  stock  must  be  distributed  pro  rata  amonj^-  the  subsi-ribcrs.  Any 
subscription  may  be  rejected  by  the  board  of  directors  or  the  cominittoe  tliereof, 
either  as  to  the  whole  or  any  part  thereof,  and  must  be,  so  far  as  rejected,  with- 
out effect. 

5438.  Of  what  guarantee  fund  shall  consist. 

Sec.  438.  The  guarantee  fund  mentioned  in  the  preceding  section  must  con- 
sist of  the  promissory  notes  of  solvent  parties,  approved  by  the  l)oard  of  direc- 
tors and  by  each  other,  payable  to  the  corporation  or  its  order,  and  at  such 
times,  in  such  modes,  and  in  such  sums,  with  or  without  interest,  and  confonn- 
able  in  all  other  respects  to  such  requirements  as  the  board  of  directors  pre- 
scribe; but  the  amount  of  the  notes  given  by  any  one  person  must  not  exceed 
in  the  whole  the  sum  of  five  thousand  dollars,  exclusive  of  interest.  Such  note 
must  be  payable  absolutely  and  at  the  option  of  the  corporation;  they  must  be 
negotiable,  and  may  be  indorsed  and  transfen-ed,  or  converted  into  cash,  or 
otherwise  dealt  with  by  the  corporation,  at  its  discretion,  without  reference  to 
any  contingency  of  losses  or  expenses.  Such  notes,  or  the  proceeds  thereof, 
must  remain  with  the  corporation  as  a  fund  for  the  better  security  of  persons 
dealing  with  it,  and  constitute  the  assets  of  the  coriDoration,  liable  for  all  its 
debts,  obligations  and  indebtedness  next  after  its  assets  from  jDremiums  and 
other  sources,  exclusive  of  capital  stock,  until  the  net  earnings,  over  and  above 
its  expenses,  losses  and  liabilities,  shall  have  accumulated  in  cash,  or  securities 
in  which  the  net  earnings  have  been  invested,  to  a  sum  which,  with  the  capital 
stock,  is  equal  to  the  aggregate  of  the  original  amounts  of  the  guarantee  fund 
and  of  the  capital  stock. 

5439.  What  constitutes,  and  deficiency  infixed  capital. 

Sec.  439.  The  sum  accumulated  as  jjrovided  in  the  preceding  section,  together 
with  the  capital  stock,  shall  become  and  remain  the  fixed  capital  of  the  corpor- 
ation, not  subject  to  division  among  the  stockholders  or  jDarties  dealing  with  it, 
or  to  be  exj^ended  in  any  manner  otherwise  than  may  be  required  in  payment  of 
the  corjioration's  debts  and  actual  expenses,  until  the  business  of  the  corpora- 
tion is  closed,  its  debts  paid,  and  its  outstanding  policies  and  obligations  of 
every  kind  canceled  or  j^rovided  for;  and  if  from  any  cause  a  deficiency  at  any 
time  occurs  in  such  fixed  capital,  no  further  division  of  profits  must  take  place 
until  such  deficiency  has  been  made  uj). 

5440.  Declaration  of  fixed  capital  to  he  filed. 

Sec.  440.  Whenever  the  fixed  capital  of  the  corporation  is  obtained  as  here- 
inbefore provided,  the  president  of  the  corporation  and  its  actuary,  or  its  sec- 
retary, if  there  is  no  actuary,  must  make  a  declaration  in  writing,  sworn  to  be- 
fore some  notary  public,  of  the  amount  of  such  fixed  capital,  and  of  tlie  par- 
ticular kinds  of  property  composing  the  same,  with  the  nature  and  amount  of 
each  kind,  which  must  be  filed  with  the  original  articles  of  incoi-jwration,  and 
a  copy,  certified  by  the  county  clerk,  must  be  published  for  at  least  four  suc- 
cessive weeks,  in  a  newsj^aper  published  in  the  county  Avhere  the  priucijial  busi- 
ness of  the  corporation  is  situated.  Upon  the  filing  of  such  declaration  the 
guarantee  fund  is  discharged  of  its  obligations,  and  all  notes  of  the  fund  re- 
maining in  the  control  of  the  corporation,  and  not  aflected  by  any  lien  thereon, 

635 


5440-5444  CH'IL  CODE. 

or  claim  of  that  nature,   must  be  sun-endered  by  it  to  tlie   makers  thereof, 
respectively,  or  other  parties  entitled  to  receive  the  same. 

5441.  Guarantee  notes  and  interest,  hoiv  disposed  of. 

Sec.  441.  Until  the  guarantee  fund  is  discharged  from  its  obligations,  as  pro- 
^^ded  in  the  preceding  section,  no  note  must  be  withdrawn  from  the  fund,  unless 
another  note  of  equal  solvency  is  substituted  therefor,  with  the  approval  of  the 
board  of  directors.  The  corporation  must  allow  a  commission,  not  exceeding 
five  per  cent,  per  annum,  on  all  such  guarantee  notes  while  outstanding,  and 
also  interest  on  all  moneys  j^aid  on  such  notes  by  the  parties  liable  thereon,  at 
the  rate  of  twelve  per  cent,  per  annum,  payable  half  yearly  until  repaid  by  the 
corporation,  unless  the  current  rate  of  interest  is  diiferent  from  this  amount,  in 
which  case  the  rate  payable  may,  from  time  to  time,  at  intervals  of  not  less  than 
one  year,  be  increased  or  reduced  by  the  board  of  directors,  so  as  to  conform 
to  the  current  rate.  [Amendment,  approved  March  30, 1874;  Amendmentsl^l^-4i, 
210;  took  effect  July  1,  1874.^"^ 

5442.  Insured  to  be  entitled  to  vote,  iclien. 

Sec  442.  After  the  filing  of  the  declaration  of  the  fixed  capital,  as  in  this 
article  l5ro^•ided,  the  holders  of  policies  of  life  insurance  for  the  term  of 
life,  on  which  the  premiums  are  not  in  default,  may  vote  at  the  election  of 
directors,  and  have  one  vote  for  each  one  thousand  dollars  insured  by  their 
policies,  respectively. 

5443.  May  invest  in  what  securities. 

Sec.  443.  The  number  of  directors  'sj^ecified  in  the  articles  of  incorporation 
may  be  altered  from  time  to  time  during  the  existence  of  the  corporation  by 
resolution,  at  the  annual  meeting  of  a  majority  of  those  entitled  to  vote  at  the 
election  of  directors,  but  the  nu.mber  must  never  be  reduced  below  five. 

5444.  Investment  of  capital  stock,  on  what  securities. 

Sec  444.  Life,  health,  and  accident  insurance  corporations  may  invest  their 
capital  stock  as  follows: 

1.  In  loans  upon  unincumbered  and  improved  real  propert}'  within  the  State 
of  California,  which  shall  be  worth  at  the  time  of  the  investment  at  least  forty 
j)er  cent,  more  than  the  sum  loaned; 

2.  In  the  jmrchase  of  or  loans  upon  interest-bearing  bonds,  and  other  secu- 
rities of  the  United  States  and  of  the  State  of  California; 

3.  In  the  jmrchase  of  or  loans  upon  interest-bearing  bonds  of  any  of  the 
otlier  states  of  the  Union,  or  of  any  county,  or  incorporated  city,  or  city  and 
county  in  the  State  of  California; 

4.  In  the  purchase  of  loans  upon  any  stocks  of  corporations  formed  under 
the  laws  of  this  state,  except  of  mining  corjiorations,  which  shall  have,  at  the 
time  of  the  investment,  a  value,  in  the  city  and  county  of  San  Francisco,  of 
not  less  than  sixty  per  cent,  of  their  par  value,  and  shall  be  rated  as  first-class 
securities;  but  no  loans  shall  be  made  on  any  securities  specified  in  subdivis- 
ions three  and  four  of  this  section,  ia  any  amount  beyond  sixty  per  cent,  of 
the  market  value  of  the  securities,  nor  shall  any  loan  be  made  on  the  stock  of 
the  corjjoration,  or  notes  or  other  obligations  of  its  corporators.  \Amendment, 
approved  March  30,  1874;  Amendments  1873-4,  211;  took  effect  July  1,  1874.^'^' 

(a)  Original  pectlon:  notes  by  the  parties  liable  thereon,  at  the  rate  of 

Sec.  441.  Until   the   gnarniitoe   fund    is   diBchurgod  twolvo  per  ciut.  per  annum,  pnynblo  half  yeiirly  until 

from  ItH  oblit'dtioHH,  an  provided  in  the  iM-erediuf,'  Hec-  repaid  by  the  corporation.    But  Fuch  rate  of  interest 

tiou,  no  noteniuKt  be  withdrawn  from  the  luiid.uuleBB  may,  from  time  to  time,  at  intervals  of  not  Ubs  than 

another  note  of  equal  Bolveniy  is  huljBtituted  tlierefor,  one  year,  be  increased  or  reduced  by  the  board  of  di- 

with  the  unauiniouK  ui)proval  of  th.-  board  of  directors  rectors,  so  as  to  conform  to  the  then  current  rates  of 

tlien  in  ollieciind  of  all  othi-r  parties  liable  on  the  rest  Interest, 

cf  the  notes  comprising  the  guarantee  fund.     The  cor-  {b)  Original  section: 

porati.jn  must  allow  a  commission  of   hvcr  jier  cent.  Sec.  444.  Life,  health,  and  accident  insurance  corpo- 

per  annum  on  all   such   guarantee  notes  while  out-  rations  may  invest  their  capital  slock  as  follows: 

BtandlDi,',  and  also  iutcrcBt  on  all  moneys  paid  on  such  1.  In  loans  upon  luiiucunibered  and  improved  real 

G3G 


INSURANCE  CORPORATIONS.  5445-5449 

5445.  Limitations  to  holding  of  stock,  etc. 

Sec.  445.  The  corporation  miiy,  by  its  by-laws,  limit  the  uumbor  of  bhures 
which  may  be  held  by  any  one  person,  and  make  such  other  provisions  for  tho 
protection  of  the  stockholders  and  the  l)etter  security  of  those  doalinj,'  with  it  us 
to  a  majority  of  the  stockholders  may  seem  proper,  not  inconsistent  with  the 
provisions  of  this  title  or  part. 

5446.  Premiums,  how  payable. 

Sec.  446.  All  premiums  must  be  payable  wholly  in  cash,  or  one  half  or  a 
greater  proportion  in  cash,  and  the  remainder  in  promissory  notes  bearing,' 
interest,  as  may  be  provided  for  by  the  by-laws.  Agreements  and  policies  of 
insurance  made  by  the  corporation  may  be  upon  the  basis  of  full  or  partial 
participation  in  the  profits,  or  without  any  participation  therein,  as  may  be  pro- 
vided by  the  by-laws  and  agreed  between  the  parties. 

5447.  Insurance  commissioner  to  be  furnished  with  valuation  of  policies  outstand- 

ing. 

Sec.  447.  Every  life  insurance  corporation  organized  under  the  laws  of  this 
state  must,  on  or  before  the  first  day  of  February  of  each  year,  furnish  the  in- 
surance commissioner  the  necessary  data  for  determining  the  valuation  of  all 
its  policies  outstanding  on  the  thirty-first  day  of  December  then  next  preced- 
ing. And  every  life  insurance  company  organized  under  the  laws  of  any  other 
state  or  country,  and  doing  business  in  this  state,  must,  upon  the  written  requi- 
sition of  the  commissioner,  fvirnish  him,  at  such  time  as  he  may  designate,  the 
requisite  data  for  determining  the  valuation  of  all  of  its  policies  then  outstand- 
ing. Such  valuations  must  be  based  upon  the  rate  of  mortality  established  by 
the  American  exiDcrieuce  life-table  and  interest  at  four  and  one  half  per  cent, 
per  annum.  For  the  purpose  of  making  the  valuations,  the  insurance  com- 
missioner is  authorized  to  employ  a  competent  actuary,  whose  compensation 
for  such  valuations  shall  be  three  cents  for  each  thousand  dollars  of  insurance; 
to  be  paid  by  the  respective  companies  whose  policies  are  thus  valued.  [Amend- 
ment, ajjproved  March  30,  1874;  Amendments  1873-4,  211;  took  effect  July  1, 
1874.'^> 

5448.  No  stamp  required  on  accident  insurance  contract. 

Sec.  448.  No  stamp  is  required  nor  stamp  duty  exacted  on  any  contract  of 
insurance,  when  such  contract  insures  against  accident  which  ma}'  result  in 
injury  or  death. 

5449.  Valuation  of  policies — Retaliatory  provision. 

Sec  449.  "When  the  certificate  of  the  insurance  commissioner  of  this  state,  of 
the  valuation  of  the  policies  of  a  life  insurance  company,  as  provided  in  section 
447  of  the  Civil  Code  of  this  state,  issued  to  any  company  organized  under  the 
laws  of  this  state,  shall  not  be  accepted  by  the  insurance  authorities  of  any 
other  state,  in  lieu  of  a  valuation  of  the  same,  by  the  insurance  officer  of  such 
other  state,  then  every  company  organized  under  the  laws  of  such  other  state, 
doing  business  in  this  state,  shall  be  required  to  have  a  separate  valuation  of  its 

estate  -within  the  State  of  California,  which  shall  be  fied  in  subdivisions  2,  3,  and  4  of  this  section  In  any 

•worth  at  the  time  of  the  investment  at  least  tifty  per  amount  beyond  ^ixty  vcr  cent,  of  the  niarket  vBlue  or 

ceiit.  more  than  the  sum  loaned;  the  securities,  norshall  any  loan  be  made  on  the  stock 

2.  In  the  purchase  of  or  loans  upon  interest-bearing  of  the  corporation  niahing  the  loan. 
Btockg,bonds,  and  other  securities  of  the  United  States,  («)   Onyiual  section:                                          i„„i>„.j 
and  of  the  stutes  thereof-  Sec.  447.  Every  lite  insurance  con'oration  doing  busl- 

3.  lu  the  purchase  of  or  loans  upon  interest-bearing  ness  in  this  si  ate.  or  fornied  undi  r  the  prov  sions  of 
bonds  of  aijy  incorporated  city,  or  city  and  county,  in  this  part,  must,  on  or  belore  the  hrst  Mondaj  In  Jiiuu- 
the  State  of  California;  »>•>•  of  each  year.  furu:sh  the  n.suraiue  ^■;;''  J'  •■>';"" 

4.  In  the  purchase  of  or  loans  upon  any  stocks  of  the  necessary  d,da  lor  deternuniut' the  ^..3  ion    f^l 

companies  and  corporations  formed  under  tlie  laws  of  ;t«P^l>'-^'-""t''V'.'"'"'^\''"  ,V   ,V  ,  .."^f^Vho  1  ,^^^^ 

this  state,  except  mining  stocks,  which  shall  have,  at  ber  next  precvLling:  ^vhich  va  u«    ..n  ";">:»  ';f'»^!f 

the  time  of  the  investment,  a  value,  in  the  city  and  upon  therateol  ".'-.'^tahty  ases  ablisl.ed  b>  «  •'•  Aimrl- 

county  of  San  Francisco,  of  not  less  than  sixty  per  can  experience   hie  table.    /.^'■/«'';  ,1'^    '"  .^,7,"'   '" 

cent,  of  their  par  value,  and  shall  be  rated  astirst-class  be  assumed  must  be  four  and  one  half  per  tent,  per 

securities.  annum. 
But  no  loans  shall  be  made  on  any  securities  speci- 

637 


5449-5455 


CIVIL  CODE. 


policies  made  imder  the  authority  of  the  insurance  commissioner  of  this  state, 

as  provided  in  section  447  of  the  Civil  Code.     [New  section,  approved  March  30, 

1874;  Jmendmenfs  1873-4,  270;  (oak  effect  sixtieth  day  after  passage. 

5450.  Policy,  to  conlaiu  ichat  evidence — Penalty. 

.i  450.    Every  poTicv  of  ■      '         '^  ' — "•""'^'^  unon  life  issued  hereafter  within  the 

■oidddivcred  witi.in  tlie  liniitHrthrstTof'/^V'^'"'''-'''''''  '''"^'^  1  ov  Corporation,  organized 

su;ir°:;;,- .3-t- oSr-t^  -^I^-'Ds^^^:  'ther  state  or  country,  or  by 

agent  of  sud.  person  or  cornorafinn  ,1^''  ."'"  '-"^""^''J'.  or  by  the  ain  written  evidence  that  it 

Po'r'^ion"'  '■/;r"  '■"^"^'^  '■"  '''^'  «tate.  "a  ..rt'ilf "  "o  ""^  "''"  ^^  ^^^  this  state,  which  shall 

poratiOD,  rtn,/j';(fo,„g„^y/    .    ^.       .  f^'"|  fit  person  or  cor- 

-ithout  ,i.e  evi-ieJ^;  ^^^h^^J^JfT:^  ^'^^  policy.  ^f  the  holder  null  and  void, 

people  of  the  State  of  California  the  sum  of  orf.  i     Y"^'  ^°  *^"«  without  the   evidence  here- 

for  cash  [eiieh]  and  every  Doli-v  «n  ;         i       *" '^""'^'■''<^  tiollars  eu   ^        r  r.    vi-         •       i-               i, 

the  Insurance  Commissioner  bv\,  if       ?'^'  ''^  ^'  •■ecovere.l  by  ^tate  of  California,  for  each 

of  the  State  of  California,  in  aLclZlr    "'""*'  °^  "'^  People  ed   dollars  in   United   States 

In  effect,  April  1    1878  ^  ^^^'^°f'''''''Pet<^nt  jurisdiction  ■  -^     n  .• 

.    F"j,  10/8.J  J    ">u/ci/o?i.  loner,  as  j)rovided  by  section 

598  of  the  Political  Coae.     ^^.v. Ma7-ch  30,  1874;  Amendments 

i  451.     Under  any  policy  of  insurance  on  life  hereafter  is- 
sued and  delivered  in  this  State,  whether  by  a  person,  or  cor  - 

poration  organized  under  the  laws  of  California,  or  under  those  .  „    .  ,  ., 

of  any  other  State  or  country,  the  holder  thereof,  at  any  time  ^^^   °*    insurance   lierealter 

during  the  continuance  of  the  policy,  shall  be  entitled  to  claim  d  holder  thereof,  presented 

and  recover  of  the  insurer-any  stipulation  or  condition  of  for-  ^^le    agent    of    SUch  person 

feiture  contained  in  the  ))olicy  or  elsewhere  to  the  contrary  not-  °  .      ■"- 

withstanding— a  surrender  value,  to  be  determined  as  follows  :)erson  or  corporation  must, 

The  net  value  of  the  policy,  at  the  time  of  demand  upon  the  in-  q(J    of  payment    pay  to   the 

surer  for  settlement  and  liquidation  of  the  same,  shall  be  ascer-  -,  r  '  ^    -J 

tained  according  to  the  American  Experience  Rate  of  Mortality,  '^^  policy,  a   SUm   equal  tO 

with  interest  at  four  and  one-half  per  centum  per  annum  ;  from  such  policv,  as  ascertained 

such  value  shall  be  deducted  and  canceled  any  indebtedness  of  .f   co^fi^r.  "f;/17    r^f  +1ia   Piiril 

the  assured  growing  out  of  the  policy,  and  a  surrender  charge  ^^   feection^  04 <    OI   tne   i^ivu 

to  the  company,  to  be  ascertained  as  follows  :  Assumins:  the  e  liquidation  of  SUch  policy, 

rates  of  mortality  and  interest  as  aforesaid,  the  present  value  ilg   1873-4      270*     toolc  effect 

of  all  the  future  contributions  of  the  policy  to  pay  death  claims,  '  ' 

or,  in  other  words,  of  all  the  normal  future  yearly  costs  of  in- 
surance which  by  its  terms  it  is  exposed  to  pay,  in  case  of  its 
continuance,  shall  be  calculated,  and  eight  per  centum  of  this 
sum  shall  be  the  legal  surrender  charge,  and  the  remainder  of 
the  net  value  of  the  policy  ascertained  as  aforesaid,  after  de- 
ducting this  surrender  charge,  anil  any  del)ts  due  the  insurer  as 
aforesaid,  shall  be  payable  to  the  insured  in  cash  within  sixty 
days  after  the  amount  is  ascertained.  If  there  shall  not  have 
been  a  settlement  and  liquidation  of  the  policy  as  hereinbefore 
provided,  ami  it  shall  have  lapsed  by  reason  of  the  non-payment 

of  a  premium,  the  insurer  must  nevertheless  continue  it  in  force  5454 

as  provided  in  the  next  ensuing  section.     [In  effect,  April  1  54G5 

'"'1  ::::::;:;::;:::;:::  5479 

.s  452.  The  net  value  of  the  policy,  at  the  expiration  of  the 
terra  for  which  the  full  amount  of  premiums  shall  have  been 
paid,  must  be  ascertained  and  determined  in  accordance  with 
the  formula  set  forth  in  the  preceding  section.     After  deducting  [. 

from  such  net  value  any  indebtedness  to  the  insurer  growing 
out  of  the  policy,  and  canceling  the  same,  anil  deducting  also 
a  surrender  charge,  as  ascertained  in  accordance  with  the  pro- 
visions of  said  preceding  section,  the  remainder  of  such  net 
value  shall  be  considered  as  a  net  single  premium  of  insurance. 
And  in  the  case  of  any  policy,  other  than  an  endowment,  the 
amount  whicliit  will  insure  as  a  life  policy  shall  be  determined 
according  to  the  age  of  the  insured  at  the  time  of  the  lapse  of 
the  policy,  and  the  rates  of  mortality  and  interest  assumed  in 
determining  the  net  value  of  the  same.  In  the  case  of  an  en- 
dowment, i)ayable  at  a  certain  time,  or  at  death,  if  it  should 
previously  occur,  the  remainder  of  the  net  value  of  the  policy, 
ascertained  iis  hereinbefore  reciuired,  shall  be  considered  as  a 
net  single  premium  of  endowment  insurance,  and  the  amount 
wljich  it  Mill  insure  as'an  endowment  for  the  unexpired  term  of 
the  pDli«v,  shatr  be  determined,  according  to  the  age  of  the  in- 
sured anil 'the  rates  of  mortality  and  interest  assumed  in  deter- 
mining the  net  value  of  the^oliey.  As  thus  adjusted,  the  policy 
is  to.ljue xonsiiriered  as  continued  in  force,  in  accordance  with  its 
ori"Ui#l  teniuB,  except  (or  a  smaller  amount ;  which  said  amount 
shiT^  be,  by  the  company,  indorsed  on  the  policy  as  paid  up  in- 
surance. K 


elected  at  a  meeting  of 
lajority  of  the  fixed  cap- 
e;  notice  thereof  to  be 
aws  in  Article  II,  Chap- 

f  stock. 

;ransferable  until  all  the 
paid  in;  nor  is  any  such 
.less  at  least  twenty  per 
erefor,  and  the  transfer 


RAILEOxVD  CORPORATIONS.  545C-54C5 

5456.  Corporations  may  horroio  monry  and  ^^•^•(lfi  boncJs. 

Sec.  450.  Railroad  corporations  may  borrow,  on  the  credit  of  tlio  corporation 
and  under  such  reguhitions  and  restrictions  as  the  directors  thereof,  by  unani- 
mous concurrence,  may  impose,  such  sums  of  money  as  may  be  necessary  for 
constructing  and  completing  their  railroad,  and  may  issue  and  dispose  of  bonds 
or  promissory  notes  therefor,  in  denominations  of  not  less  than  live  hundred 
dollars,  and  at  a  rate  of  interest  not  exceeding  ten  per  cent,  per  annum;  and 
may  also  issue  bonds  or  promissory  notes,  of  the  same  denomination  and  rate 
of  interest,  in  payment  of  any  debts  or  contracts  for  constructing  and  complet- 
ing their  road,  with  its  equipments  and  all  else  relative  thereto.  The  amount 
of  bonds  or  promissory  notes  issued  for  such  purposes  must  not  exceed,  in  all, 
the  amount  of  their  capital  stock;  and  to  secure  the  payment  of  sucli  bonds  or 
notes,  they  may  mortgage  their  corporate  property  and  franchise. 

5457.  To  provide  sinking  fund  to  pay  bonds. 

Sec.  457.  The  directors  must  provide  a  sinking  fund,  to  be  specially  applied 
to  the  redemption  of  such  bonds  on  or  before  their  maturity,  and  may  also  con- 
fer on  any  holder  of  any  bond  or  note  so  issued,  for  money  borrowed  or  in  pay- 
ment of  any  debt  or  contract  for  the  construction  and  equipment  of  such  road, 
the  right  to  convert  the  principal  due  or  owing  thereon  into  stock  of  such  cor- 
poration, at  any  time  within  eight  years  from  the  date  of  such  bonds,  under 
ffuch  regulations  as  the  directors  may  adopt. 

5458.  Capital  stock  to  be  fixed. 

Sec.  458.  When,  at  any  time  after  filing  the  articles  of  incorporation,  it  is 
ascertained  that  the  capital  stock  therein  set  out  is  either  more  or  less  than  act- 
ually required  for  constructing,  equipping,  operating  and  maintaining  the  road, 
by  a  two  third  vote  of  the  stockholders  the  capital  stock  must  be  fixed,  and  a 
certificate  thereof,  and  of  the  proceedings  had  to  fix  the  same,  must  be  made 
out  and  filed  in  the  office  of  the  secretary  of  state. 

5459.  Certificate  of  payment  of  fixed  capital  stock. 

Sec.  459.  Within  thii'ty  days  after  the  payment  of  the  last  installment  of  the 
fixed  capital  stock  of  any  railroad  corj)oration  organized  under  this  title  and 
part,  the  president  and  secretary  and  a  majority  of  the  directors  thereof  must 
make,  subscribe  and  file  in  the  office  of  the  secretary  of  state  a  certificate,  stating 
the  amount  of  the  fixed  capital  stock,  and  that  the  whole  thereof  has  been  paid ' 
in.  The  certificate  must  be  verified  by  the  affidavit  of  the  president  and  secre- 
tary. 

CHAPTER  II. 

ENUMERATION   OF   POWERS. 

5465.  Enumeration  of  powers. 

Sec.  465.  Every  railroad  corporation  has  power: 

1.  To  cause  such  examination  and  surveys  to  be  made  as  may  be  necessary  to 
the  selection  of  the  most  advantageous  route  for  the  railroad;  and  for  such  pur- 
poses their  officers,  agents  and  employees  may  enter  upon  the  lands  or  waters 
of  any  person,  subject  to  liability  for  all  damages  which  they  do  theret... 

May  accept  real  estate.  .  . 

2.  To  receive,  hold,  take  and  convey,  by  deed  or  otherwise,  as  a  natural  per- 
son, such  voluntary  grants  and  donations  of  real  estate  and  other  i)ruperty 
which  may  be  made  to  it  to  aid  and  encourage  the  consti-uctiou,  maintenance, 
and  accommodation  of  such  railroad. 

May  acquire  real  estate,  .  .  ■  ■*-  ■ 

3.  To  purchase,  or  by  voluntary  grants  or  donations  td  i^ceive,  ente^^tuke 

639  -  y''^: 


54G5  CIVIL  CODE. 

possession  of,  hold  and  use  all  sucli  real  estate  and  other  property  as  may  be 
absolutely  necessary  for  the  eonstructfon  and  maintenance  of  such  railroad,  and 
for  all  stations,  depots  and  other  purposes  necessary  to  successfully  work  and 
conduct  the  business  of  the  road. 

Laij  out  road,  hoxo  iiside. 

4:.  To  lay  out  its  road,  not  exceeding  nine  rods  wide,  and  to  construct  and 
maintain  the  same,  with  a  single  or  double  track,  and  with  such  appendages 
and  adjuncts  as  may  be  necessary  for  the  convenient  use  of  the  same. 

Where  may  construct  road. 

5.  To  construct  their  road  across,  along  or  upon  any  stream  of  Avater,  water- 
course, roadstead,  bay,  navigable  stream,  street,  avenue  or  highway,  or  across 
any  railway,  canal,  ditch  or  flume,  which  the  route  of  its  road  intersects,  crosses, 
or  runs  along,  in  such  manner  as  to  afford  security  for  life  and  property;  but 
the  corporation  shall  restore  the  stream  or  watercourse,  road,  street,  avenucj 
highway,  railroad,  canal,  ditch  or  flume,  thus  intersected  to  its  former  state  of 
usefulness,  as  near  as  may  be,  or  so  that  the  railroad  shall  not  unnecessarily 
impair  its  usefulness  or  injure  its  franchise;  thus  intersected  to  its  former  state 
of  usefulness,  as  near  as  may  be,  or  so  that  the  railroad  shall  not  unnecessarily 
impair  its  usefulness  or  injure  its  franchise. 

3Iaij  cross  or  connect  roads. 

G.  To  cross,  intersect,  join,  ot  unite  its  railroad  with  any  other  railroad, 
either  before  or  after  construction,  at  any  point  upon  its  route,  and  upon  the 
gi-ounds  of  such  other  railroad  corporation,  with  the  necessary  turnouts,  sidings, 
and  switches,  and  other  conveniences  in  furtherance  of  the  objects  of  its  con- 
nections; and  every  corporation  whose  railroad  is,  or  shall  be  hereafter,  inter- 
sected by  any  new  railroad,  shall  unite  with  the  owners  of  such  new  railroad  in 
forming  such  intersections  and  connections,  and  grant  facilities  therefor;  and  if 
the  two  corporations  cannot  agree  upon  the  amount  of  compensation  to  be 
paid  therefor,  or  the  points  or  the  manner  of  such  crossings,  intersections,  and 
connections,  the  same  shall  be  ascertained  and  determined  as  is  provided  in 
Title  VII,  Part  III,  Code  of  Civil  Procedure.     [See  post,  11,  237.] 

IMay  purchase  land,  timber,  stone,  gravel,  etc. 

7.  To  purchase  lands,  timber,  stone,  gravel,  or  other  materials,  to  be  used  in 
the  construction  and  maintenance  of  its  road,  and  all  necessary  appendages 
and  adjuncts,  or  acquire  them  in  a  manner  provided  in  Title  VII,  Part  III, 
Code  of  Civil  Procedure,  for  the  condemnation  of  lands;  and  to  change  the 
line  of  its  road,  in  whole  or  in  part,  whenever  a  majority  of  the  directors 
so  determine,  as  is  provided  hereinafter;  but  no  such  change  must  vary  the 
general  route  of  such  road,  as  contemplated  in  its  articles  of  incorporation. 

Carry  persons  and  freight. 

8.  To  cany  persons  and  property  on  their  railroad,  and  receive  tolls  or  com- 
pensation therefor. 

Erect  necessary  buildings. 

9.  To  erect  and  maintain  all  necessai'j^  and  convenient  buildings,  stations, 
depots,  fixtures,  and  machinery  for  the  accommodation  and  use  of  their  passen- 
gers, freight,  and  business. 

Regulate  time  and  freights,  subject  to  legislation. 

10.  To  regulate  the  time  and  manner  in  which  passengers  and  property 
shall  be  transported,  and  the  tolls  and  compensation  to  be  paid  therefor  within 
the  limits  prescribed  by  law,  and  subject  to  alteration,  change,  or  amendment 
by  the  legisluture  at  any  time. 

640 


RAILKOAD  COEPORATIONS.  54G5-5470 

Regulate  force  and  speed. 

11.  To  regulate  the  force  and  speed  of  tlieir  locomotives,  cars,  trains,  or 
other  niachiueiy  used  and  employed  on  tlieir  road,  and  to  establish,  execute, 
and  enforce  all  needful  and  pro})er  rules  and  regulations  for  the  management 
of  its  business  transactions  usual  and  proper  for  railroad  coriiorations. 

5466.  Map  and  profile  to  be  filed. 

Sec.  4G6.  Every  railroad  corporation  in  tliis  state  must,  uitliin  a  reasonable 
time  after  its  road  is  finally  located,  cause  to  be  made  a  map  and  i)rolile  tliereof, 
and  of  the  land  acquired  for  the  use  thereof,  and  the  boundaries  of  the  several 
counties  through  which  the  road  may  run,  and  file  the  same  in  the  oflice  of  the 
secretary  of  state;  and  also  like  maps  of  the  parts  thereof  located  in  different 
counties,  and  file  the  same  in  the  office  of  the  clerk  of  the  county  in  which 
such  parts  of  the  road  are,  there  to  remain  of  record  forever.  The  maps  and 
profiles  must  be  certified  by  the  chief  engineer,  the  acting  president  and  secre- 
•  tary  of  such  comj)any,  and  copies  of  the  same,  so  certified  and  filed,  be  kept  in 
the  office  of  the  secretary  of  the  corporation,  subject  to  examination  by  all 
parties  interested. 

5467.  3Iay  change  line  of  road. 

Sec.  467.  If,  at  any  time  after  the  location  of  the  line  of  the  railroad  and  the 
filing  of  the  maps  and  profiles  thereof,  as  provided  in  the  preceding  section,  it 
appears  that  the  location  can  be  improved,  the  directors  may,  as  provided  in 
subdivision  7,  section  465,  alter  or  change  the  same,  and  cause  new  maps  and 
profiles  to  be  filed,  showing  such  changes,  in  the  same  offices  where  the  origi- 
nals are  of  file,  and  may  proceed,  in  the  same  manner  as  the  original  location 
was  acquired,  to  acquire  and  take  possession  of  such  new  line,  and  must  sell  or 
relinquish  the  lands  owned  by  them  for  the  original  location,  within  five  years 
•  after  such  change.  No  new  location,  as  herein  provided,  must  be  so  run  as  to 
avoid  any  points  named  in  their  articles  of  incorporation. 

5468.  Forfeiture  of  franchise. 

Sec.  468.  Every  railroad  corporation  must,  within  two  years  after  filing  its 
original  articles  of  incorporation,  begin  the  construction  of  its  road,  and  must 
every  year  thereafter  complete  and  put  in  full  operation  at  least  five  miles  of  its 
road,  until  the  same  is  fully  completed;  and  upon  its  failure  so  to  do,  for  the 
period  of  one  year,  its  right  to  extend  its  road  beyond  the  point  then  completed 
is  forfeited. 

5469.  Crossings  and  intersections. 

Sec.  469.  Whenever  the  track  of  one  railroad  intersects  or  crosses  the  track 
of  another  railroad,  whether  the  same  be  a  street  railroad,  wholly  within  the 
limits  of  a  city  or  town,  or  other  railroad,  the  rails  of  either  or  each  road  must 
be  so  cut  and  adjusted  as  to  permit  the  passage  of  the  cars  on  each  road  with 
as  little  obstruction  as  possible;  and,  in  case  the  persons  or  corporations  own- 
ing the  railroads  cannot  agree  as  to  the  compensation  to  be  made  for  cutting 
and  adjusting  the  rails,  the  condemnation  of  the  right  of  way  over  the  one  for 
the  use  of  the  other  road  may  be  had  in  proceedings  under  Title  YII,  Part  III, 
Code  of  Civil  Procedure,  and  the  damages  assessed  and  the  right  of  way  granted 
as  in  other  cases. 

5470.  Use  of  streets,  alleys,  or  neater,  in  cities  or  toicns. 

Sec.  470.  No  railroad  corporation  must  use  any  street,  alley,  or  highway,  or 
any  of  the  land  or  water,  within  any  incorporated  city  or  town,  unless  the  right 
to  so  use  the  same  is  granted  by  a  two  third  vote  of  the  town  or  city  authority 
from  which  the  right  must  emanate. 

41  641 


5471-3i76  CIYIL  CODE. 

5471.  Bailroads  through  cities  not  to  charge  fare  to  and  from  points  therein. 

Slc.  471.  No  railroad  corporation,  other  than  street  raih-oads,  availing  itseK 

S  471     i5«r..;,^r,  f„     u     J    ,  J?  right  of  way  from  city 

r^^^-    ^'     ^        "  '^?"''  '^"ndred  and  seventj-one  of  the  Civil  i  +■      +i 

Code  IS  hereby  repealed.     [In  effect,  April  1st,  1878  J  ^^^  purposes,  or  lor  the 

purpose  of  can-yiug  passengers  lor  a  consiuexutav^xx,  .xom  any  j^oint  to  another 

in  the  same  city,  except  such  roads  as  are  or  may  he  built  on  the  prismoidal  or 

other  elevated  railroad  plan,  and  chartered  for  street  railroad  purposes;  provided, 

that  such  elevation  shall  be  not  less  than  fourteen  feet  above  the  street  level. 

{Amemhne)d,  approved  April  1,  1876;  Amendments  1875-6,  76;  took  ef/'ect  from 

5472.  When  crossing  railroads  or  highways,  hoiv  other  lands  are  acquired. 

Sec.  472.  Whenever  the  track  of  such  railroad  crosses  a  railroad  or  highway, 
such  railroad  or  higlnvay  may  be  carried  under,  over,  or  on  a  level  with  the 
truck,  as  may  be  most  expedient;  and  in  cases  where  an  embankment  or  cutting 
necessitates  a  change  in  the  Hne  of  such  railroad  or  highway,  the  corporation 
mav  take  such  additional  lands  and  material  as  are  necessary  for  the  construc- 
tion of  such  road  or  highway  on  such  new  line.  If  such  other  necessaiy  lands 
cannot  be  had  otherwise,  they  may  be  condemned  as  provided  in  Title  VII, 
Part  III,  Code  of  Civil  Procedure;  and  when  compensation  is  made  therefor, 
the  same  becomes  the  property  of  the  corporation.     [See  post,  11,237.] 

5473.  Corporations  may  consolidate. 

Sec.  473.  Two  or  more  railroad  corporations  may  consolidate  their  capital 
stock,  debts,  proj)erty,  assets,  and  franchises  in  such  manner  as  may  be  agreed 
upon  by  their  respective  boards  of  directors.  No  such  amalgamation  or  con- 
solidation must  take  place  without  the  written  consent  of  the  holders  of  three 
fourths  in  value  of  all  the  stock  of  each  corporation;  and  no  such  amalgamation 
or  consolidation  must  in  any  way  relieve  such  corporation  or  the  stockholders 
thereof  from  any  and  all  just  liabilities.  In  case  of  such  amalgamation  or  con- 
solidation, due  notice  of  the  same  must  be  given,  by  advertisement  for  one 
month  in  at  least  one  newspaper  in  each  county,  if  there  be  one  published 
therein,  into  or  through  which  such  roads  run,  and  also  for  the  same  length  of 
time  in  one  paper  published  in  Sacramento  and  in  two  papers  published  in  San 
Francisco;  and  when  the  consolidation  and  amalgamation  is  completed,  a  copy 
of  the  new  articles  of  incorporation  must  be  filed  in  the  office  of  the  secretary 
of  state. 

5474.  Slate  lands  granted  for  use  of  corporations. 

Slc.  474.  There  is  granted  to  every  railroad  corporation  the  right  of  way  for 
the  location,  construction,  and  maintenance  of  their  necessary  works,  and  for 
every  necessary  adjunct  thereto,  over  any  swamp,  overflowed,  or  other  public 
lands  of  the  state  not  otherwise  disposed  of  or  in  use,  not  in  any  case  exceeding 
in  length  or  width  that  which  is  necessary  for  the  construction  of  such  works 
and  adjuncts,  or  for  the  protection  thereof,  not  in  any  case  to  exceed  two  hun- 
droil  feet  in  width. 

5475.  (jraut  not  to  emhrarr  tovn  lots. 

Six.  475.  The  grants  mentioned  in  the  preceding  section  do  not  apply  to 
public  lands  of  the  state  within  the  corporate  limits  of  towns  and  cities,  or 
within  three  miles  thereof. 

5476.  Wood,  stone  and  earth  may  he  taken  from  state  lands. 

Sec.  47G.  The  right  to  take  from  any  of  the  lands  belonging  to  the  state, 

(o)   0ri(,'in«l  section:  autlioritios,  mviRt  ever  uso  their  road  for  street  rail- 

Hkc.  471.   No  railniad  corporation,  other  than  Btreet  road  purpoBCB,  or  for  tlie  piiri^ose  of  carryiii},'  paeseu- 

railroadh,  uvniling  itBelf  of  the  provihions  of  tlie  pre-  gers  lor  a  consideratiou  from  any  point  to  another  in 

ceding  Bettiou  and  acquiring  right  of  way  from  city  the  same  city. 

642 


RAILROAD  CORPORATIONS.  547G-5480 

adjacent  to  the  works  of  the  corporation,  all  materials,  such  as  wood,  stone  and 
earth,  naturally  appurtenant  thereto,  wliich  may  bo  necessary  and  couvenient 
for  the  original  construction  of  its  works  and  adjuncts,  is  granted  to  such  cor- 
porations. 

5477.  Lands  to  revert  to  stale,  xchen. 

Sec.  477.  If  any  corporation  receiving  state  lands  or  appurtenances  there- 
under is  dissolved,  ceases  to  exist,  is  discontinued,  or  the  route  or  line  of  its  works 
is  so  changed  as  not  to  cover  or  cross  the  lands  selected,  or  the  use  of  the  lands 
selected  is  abandoned,  such  selected  hinds  revert,  and  the  title  thereto  is  rein- 
vested in  the  state  or  its  grantees,  free  from  all  such  uses. 

5473.  Selections  made,  how  proved  and  certified  to. 

Sec.  478.  When  any  selection  of  the  right  of  way,  or  land  for  an  adjunct  to 
the  works  of  a  railroad  corporation,  is  made  by  any  corporation,  tlie  secretary 
thei-eof  must  transmit  to  the  surveyor-general,  controller  of  state  and  recorder 
of  the  county  in  which  the  selected  lands  are  situate,  a  plat  of  the  lands  so 
selected,  giving  the  extent  thereof  and  uses  for  which  the  same  is  claimed  or 
desired,  duly  verified  to  be  correct;  and,  if  approved,  the  surveyor-general  must 
so  indorse  the  plat,  and  issue  to  the  corj^oration  a  permit  to  use  the  same,  unless, 
on  petition  properly  presented  to  the  court,  a  review  is  had  and  such  use  pro- 
hibited. 

CHAPTEE  III. 

BUSINESS,  HOW   CONDUCTED. 

5479.  Checks  to  be  affixed  to  all  baggage. 

Sec.  479.  A  check  must  be  affixed  to  every  package  or  parcel  of  baggage 
when  taken  for  transportation  by  any  agent  or  emjaloyee  of  such  railroad  cor- 
poration, and  a  duplicate  thereof  given  to  the  passenger  or  person  delivering 
the  same  in  his  behalf;  and  if  such  check  is  refused  on  demand,  the  railroad 
corpoi'ation  must  pay  to  such  passenger  the  sum  of  twenty  dollars,  to  be  recov- 
ered in  an  action  for  damages;  and  no  fare  or  toll  must  be  collected  or  received 
from  such  passenger,  and  if  such  passenger  has  paid  his  fare,  the  same  must  be 
returned  by  the  conductor  in  charge  of  the  train;  and  on  producing  the  check, 
if  his  baggage  is  not  delivered  to  him  by  the  agent  or  employee  of  the  railroad 
corporation,  he  ma}'^  recover  the  value  thereof  from  the  corporation. 

5480.  Annual  repo7^t  to  be  verified. 

Sec.  480.  Every  i-ailroad  corjwratiou  must  make  an  annual  report  to  the  sec- 
retary of  state,  or  other  officer  designated  by  law,  of  its  operations  for  each 
year,  ending  on  the  thirty-first  day  of  December,  verified  by  the  oaths  of  the 
president  or  acting  superintendent  of  oj^erations,  the  secx-etary  and  treasm-erof 
such  corporation,  and  file  it  in  the  office  of  the  secretary  of  state,  or  such 
other  designated  officer,  by  the  twentieth  day  of  February,  which 'must  state: 

1.  The  capital  stock,  and  the  amount  thereof  actually  paid  in; 

2.  The  amount  expended  for  the  purchase  of  lands  for  the  construction  of 
the  road,  for  buildings,  and  for  engines  and  cars,  respectively; 

3.  The  amount  and  nature  of  its  indebtedness,  and  the  amount  duo  the  cor- 
poration; 

4.  The  amount  received  from  the  transportation  of  passengers,  property, 
mails,  and  express  matter,  and  from  other  sources; 

5.  The  amount  of  freight,  specifying  the  quantity  in  tons; 

6.  The  amount  paid  for  repairs  of  engines,  cars,  buildings,  and  other  expenses, 
in  gross,  showing  the  current  expenses  of  running  such  road; 

7.  The  number  and  amount  of  dividends,  and  when  paid; 

G43 


54S0-54S5  CIVIL  CODE. 

8.  The  number  of  engine  houses  and  shops,  of  engines  and  cars,  and  their 
character. 

5481.  Duties  of  corporation. 

Sec.  481.  Eveiysuch  corporation  must  start  and  run  their  cars,  for  the  trans- 
portation of  persons  and  property,  at  such  reguLar  times  as  they  shall  fix  by 
public  notice,  and  must  furnish  sufficient  accommodations  for  the  transporta- 
tion of  all  such  passengers  and  jiroperty  as,  within  a  reasonable  time  previous 
thereto,  oflFer  or  is  offered  for  transportation,  at  the  place  of  starting,  at  the 
junction  of  other  raih'oads,  and  at  siding  and  stopping  places  established  for 
receiving  and  discharging  way  passengers  and  freight;  and  must  take,  trans- 
port, and  discharge  such  passengers  and  proiierty  at,  from,  and  to  such  places, 
on  the  due  jjayment  of  tolls,  freight,  or  fare  therefor. 

5482.  Corporation  to  pay  damages  for  refusal. 

Sec  482.  In  case  of  refusal  by  such  coi-poration  or  their  agents  so  to  tate  and 
transport  any  passengers  or  property,  or  to  deliyer  the  same,  at  the  regular  ap- 
pointed places,  such  corporation  must  pay  to  the  party  aggrieved  all  damages 
which  are  sustained  thereby,  with  costs  of  suit. 

5483.  Inside  room  for  passengers,  etc. — Passengers  on  freight  cars. 

Sec  483.  Every  railroad  corporation  must  furnish,  on  the  inside  of  its  pas- 
senger cars,  sufficient  room  and  accommodations  for  all  passengers  to  whom 
tickets  are  sold  for  any  one  trip,  and  for  all  jDcrsons  presenting  tickets  entitling 
them  to  travel  thereon;  and  when  fare  is  taken  for  transporting  passengers  on 
any  baggage,  wood,  gravel,  or  freight  car,  the  same  care  must  be  taken  and  the 
same  i-esponsibility  is  assumed  by  the  coi-poration  as  for  passengers  on  passen- 
ger cars. 

5484.  Printed  rules  and  regulations. 

Sec  484.  Every  railroad  corporation  must  have  printed  and  conspicuously 
posted  on  the  inside  of  its  passenger  cars  its  rules  and  regulations  regarding 
fare  and  conduct  of  its  passengers;  and  in  case  any  passenger  is  injured  on  or 
from  the  platform  of  a  car,  or  on  any  baggage,  wood,  gravel,  or  freight  car,  in 
violation  of  such  printed  regulations,  or  in  violation  of  j^ositive  A-erbal  instiiic- 
tions  or  injunctions  given  to  such  passenger  in  person  by  any  officer  of  the  train, 
the  coi-jioration  is  not  responsible  for  damages  for  such  injuries,  unless  the  cor- 
poration failed  to  comply  with  the  provisions  of  the  preceding  section. 

5485.  Fences — Damages. 

Sec  485.  Railroad  corporations  must  make  and  maintain  a  good  and  sufficient 
fence  on  either  or  both  sides  of  their  track  and  property.  In  case  they  do  not 
make  and  maintain  such  fence,  if  their  engine  or  cars  shall  kill  or  maim  any 
cattle  or  other  domestic  animals  upon  their  line  of  road  which  passes  through 
or  along  the  property  of  the  owner  thereof,  they  must  pay  to  the  owner  of  such 
cattle  or  other  domestic  animals  a  fair  market  price  for  the  same,  unless  it 
occurred  throtigh  the  neglect  or  fault  of  the  owner  of  the  animal  so  killed  or 
maimed.  Railroad  corporations  paying  to  the  owner  of  the  land  through  or 
along  which  their  road  is  located  an  agreed  price  for  making  and  maintaining 
bucIj  fence,  or  paying  the  cost  of  such  fence  with  the  award  of  damages  allowed 
for  the  right  of  way  for  such  railroad,  are  relieved  and  exonerated  from  all 
claims  for  damages  arising  out  of  the  killing  or  maiming  any  animals  of  persons 
who  thus  fail  to  construct  and  maintain  such  fence;  and  the  owners  of  such 
animals  are  responsible  for  any  damage  or  loss  which  may  accrue  to  such  cor- 
poration from  such  animals  beiug  upon  their  railroad  track,  resulting  from  the 
non-construction  of  such  fence,  unless  it  is  shown  that  such  loss  or  damage 
occun-ed  through  the  negligence  or  fault  of  the  coiijoration,  its  officers,  agents, 
or  employees. 

G44 


RAILROAD  CORPORATIONS.  5^80-5490 

5486.  Bell  and  other  regulations  of  trai)i!>. 

Skc.  -480.  A  bell,  of  at  least  twenty  pounds  weight,  must  be  placed  on  each 
locomotive  engine,  and  be  rung  at  a  di.stance  of  at  least  eighty  rods  from  the 
place  where  the  railroad  crosses  any  street,  road,  or  highway,  and  bo  kept  ring- 
ing until  it  has  crossed  such  street,  road,  or  highway;  or  a  steam  whistle  must 
be  attached,  and  be  sounded,  except  in  cities,  at  the  like  distance,  and  be  kr-[,t 
sounding  at  intervals  until  it  has  crossed  the  same,  under  a  penalty  of  one  hun- 
dred dollars  for  every  neglect,  to  be  paid  by  the  corporation  operating  the  rail- 
road, which  may  be  recovered  in  an  action  prosecuted  by  the  district  attorney 
of  the  proper  county,  for  the  use  of  the  state.  The  corporation  is  also  liable 
for  all  damages  sustained  by  any  person,  and  caused  by  its  locomotives,  fi.iiii, 
or  cars,  when  the  provisions  of  this  section  are  not  complied  with. 

5487.  Passenger  refusing  to  pay  fare. 

Sec.  487.  If  any  passenger  refuses  to  pay  his  fare,  or  to  exhibit  or  suirender 
his  ticket,  when  reasonably  requested  so  to  do,  the  conductor  and  employees  of 
the  corporation  may  put  him  and  his  baggage  out  of  the  cars,  using  no  unneces- 
sary force,  at  any  usual  stoppiug-place,  or  near  any  dwelliug-house,  on  stojipiug 
the  train. 

5438.   Officers  to  ivear  badge. 

Sec.  488.  Every  conductor,  baggage  master,  engineer,  brakeman,  or  other 
employee  of  any  railroad  corjDoratiou,  employed  on  a  passenger  train  or  at  sta- 
tions for  passengers,  must  wear  upon  his  hat  or  cap,  or  in  some  conspicuous 
place  on  the  breast  of  his  coat,  a  badge,  indicating  his  office  or  station,  and  the 
initial  letters  of  the  name  of  the  corporation  by  which  he  is  employed.  No 
collector  or  conductor,  without  such  badge,  is  authoiized  to  demand  or  to  receive 
from  any  passenger  any  fare,  toll,  or  ticket,  or  exercise  any  of  the  powers  of 
his  office  or  station;  and  no  other  officer  or  employee,  without  such  badge,  has 
any  authority  to  meddle  or  interfere  with  any  passenger  or  propert}'. 

5489.  Bates  of  charges. 

Sec.  489.  All  railroad  corporations  must  fix  and  publish  their  rates  of  charges 
for  freightage  and  fares  from  one  depot  to  another,  on  their  various  lines  of  road 
in  this  state,  graduated  as  follows: 

1.  One  rate  of  charges  per  mile  for  a  distance  of  one  hundred  miles  or  over; 

2.  One  rate  for  a  distance  of  seventy  five  and  less  than  one  hundred  miles, 
charging  not  exceeding  ten  per  cent,  per  mile  more  than  the  first  rate. 

3.  One  rate  for  a  distance  of  fifty  and  less  than  seventy-five  miles,  charging 
not  exceeding  fifteen  per  cent,  per  mile  more  than  the  first  rate; 

4.  One  rate  for  a  distance  of  twenty-five  and  less  than  fifty  miles,  charging 
not  exceeding  twenty  per  cent,  per  mile  more  than  the  first  rate; 

5.  One  rate  for  a  distance  not  exceeding  twenty-five  miles,  charging  not 
exceeding  twenty -five  per  cent,  per  mile  more  than  the  first  rate. 

But  in  no  case,  nor  in  any  class  of  charges  hereinbefore  named,  shall  any 
railroad  corporation  charge  or  receive  more  than  ten  cents  per  mile  for  each 
passenger,  nor  fifteen  cents  per  mile  for  each  ton  of  freight  transported  on  its 
road.  For  every  transgression  of  these  limitations  the  coi-poration  is  liable,  to 
the  party  sufferiug  thereby,  treble  the  entire  amount  of  fare  or  freightage  so 
charged  to  such  party.  In  no  case  is  the  corporation  recpiired  to  receive  less 
than  twenty-five  cents  for  any  one  lot  of  freight  for  any  distance. 

5490.  Passenger  tickets,  how  issued,  and  to  be  good  for  si.r  tnonth.^. 

Sec.  490.  Eveiy  railroad  corporation  must  provide,  and,  on  being  tendered 
the  fare  therefor  fixed  as  provided  in  the  preceding  section,  furnish  to  eveiy 
person  desiring  a  passage  on  their  passenger  cars  a  ticket  which  entitles  the 
pmxhaser  to  a  ride,  and  to  the  accommodations  provided  on  their  cars,  from 

G45 


5490-5491  CIVIL  CODE. 

the  depot  or  station  where  the  same  is  purchased  to  any  other  depot  or  station 
on  tlie  line  of  their  road.  Every  such  ticket  entitles  the  holder  thereof  to  ride 
on  their  passenj^er  cars  to  the  station  or  depot  of  destination,  or  any  iuteruae- 
diatc  station,  and  from  any  intermediate  station  to  the  depot  of  destination 
designated  in  the  ticket,  at  any  time  within  six  months  thereafter.  Any  corpo- 
ration failing  so  to  provide  and  furnish  tickets,  or  refusing  the  passage  which 
the  same  calls  for  when  sold,  must  pay  to  the  j)erson  so  refused  the  sum  of  two 
hundred  dollars. 

5491.   Character  of  iron  rail  to  he  used. 

Sec.  491.  All  railroads,  other  than  street  railroads  and  those  used  excliTsively 
for  carrying  freight  or  for  mining  purposes,  built  by  corjiorations  organized 
under  this  chapter,  must  be  constructed  of  the  best  quality  of  iron  or  steel  rails, 
known  as  the  T  or  H  rail,  or  other  pattern  of  equal  utility.  [Aviendmenf^  ap- 
proved Jllarch  30,  1874;  Amendments  1873-4,  212;  took  effect  July  1,  1874.'"' 

An  Act  to  provitle  for  the  appoiutiueiit  of  commissioners  of  trausportatiou,  to  fix  the  maxi- 
mum charges  for  fruights  and  fares,  and  to  prevent  extortion  and  discrimination  ou  raih'oads 

in  this  state. 

Approved  April  3,  1876;  1875-G,  783. 

CHAPTER    ONE. 

Governor  to  appoint  three  commissioners. 

Skction  1.  On  or  before  the  fifteenth  day  of  May,  eighteen  hundred  and  sev- 
enty-six, the  governor  shall  appoint  three  competent  persons,  to  be  stj'led  com- 
missioners of  transportation,  who  shall  hold  office  for  the  peiiod  of  two  years 
and  until  their  successors  are  appointed  and  qualified.  The  persons  who  are 
so  appointed  shall  have  no  official  connection  with,  nor  be  in  the  employ  of  any 
railroad  corporation  or  conipany,  nor  shall  they,  during  their  term  of  office,  ow^n 
or  be  interested  in  the  stock,  bonds  or  other  property  thereof.  Said  commis- 
sioners shall  have  their  office  in  the  state  capitol  building,  at  Sacramento. 

Oath  and  bond  of  commissioners. 

Sec.  2.  Befoi-e  entering  upon  the  discharge  of  the  duties  of  their  office,  each 
of  said  commissioners  shall  take  an  oath  or  affirmation  to  support  the  constitu- 
tion of  the  United  States  and  of  this  state,  and  to  faithfully  and  honestly  dis- 
charge his  duty  as  such  commissioner,  and  that  he  is  not  an  officer,  stockholder 
or  employee  of  any  railroad,  or  in  any  way  interested  therein,  or  a  stockholder, 
officer  or  employee,  or  in  any  way  interested  in  any  express  or  freight  company 
doing  business  on  any  of  the  railroads  in  the  United  States,  and  the  said  com- 
missioners shall  Ije  citizens  of  this  state;  they  shall  each  execute  and  file  with 
the  secretary  of  state  an  official  bond,  with  good  and  sufficient  sureties,  to  be 
ai)i)roved  by  the  governor,  in  the  penal  sum  of  ten  thousand  dollars,  conditioned 
for  the  faithful  performance  of  their  duties  under  this  act. 

Salariex. 

Skc.  3.  The  salary'  of  each  commissioner  shall  be  three  thousand  dollars  per 
annum,  to  be  paid  by  the  State  of  California  in  the  same  manner  as  the  salary 
of  otlier  state  officers  are  paid.  They  shall  have  power  to  elect  one  of  their 
number  i)reKidcnt  of  said  board,  to  employ  a  secretary  at  a  salary  of  not  exceed- 
ing eighteen  hundred  dollars  per  annum,  and  shall  be  allowed  a  contingent 
fund  of  not  exceeding  twenty-five  dollars  per  month  to  defray  the  necessary 
expenses  of  fuel  and  stationery;  the  commissioners  and  their  secretary  shall  be 
tra7isported,  in  the  discharge  of  their  duties,  over  the  various  railroads  owned 
by  corporations  within  tliis  state,  free  of  charge. 

(o)  The  original  Bcctlon  did  not  have  the  words  "  or  stoel." 

G46 


RAILROAD  CORPORATIONS.  5491 

Commissioners  to  examine  roads,  bridges,  etc.,  and  report  needed  rejinirs. 

Sec.  4.  It  shall  be  the  duty  of  such  commissioners,  whenever  tlioy  shall  deom 
it  necessaiy,  to  inspect  all  railroads,  operated  by  steam  power,  within  tliis  stiite, 
and  to  examine  the  same  with  reference  to  the  security  and  accomiii<iduti<in  of 
the  public;  and  if,  on  such  examination,  in  their  opinion  any  of  the  trucks, 
bridges  or  other  structures  or  works  thereof,  are  untit  for  the  transportation  of 
passengers  with  reasonable  safety,  it  shall  be  their  duty  to  give  to  the  superin- 
tendent, or  other  executive  officer  of  the  company  working  or  operating  said 
defective  track,  bridge  or  other  structure,  notice  of  the  condition  tlicreof  and 
the  rej^airs  necessary  to  place  the  same  in  a  safe  condition;  and  if  any  superin- 
tendent, or  other  executive  officer  aforesaid,  receiving  such  notice  and  order, 
shall  willfully  neglect  to  commence  repairing  the  same  for  the  period  of  two 
days  after  receiving  such  notice  and  order,  such  superintendent  or  other  execu- 
tive officer,  shall  be  deemed  g"nilty  of  a  misdemeanor. 
Petitions  for  stations,  side-tracks,  etc. 

Sec.  5.  Whenever  a  petition,  signed  in  good  faith  by  fifty  or  more  ]n-operty- 
holders  residing  within  ten  miles  of  any  proposed  station,  switch  or  side-track, 
shall  be  presented  to  the  commissioners,  praying  for  the  establishment  of  a  new 
station,  switch  or  side-track,  the  commissioners  shall  notify  the  managers  of 
such  railroad  of  such  petition,  and  appoint  a  time  and  place  for  hearing  the 
same.  Should  the  corporation  neglect  or  refuse  to  comply  with  the  award  of 
the  commissioners,  it  shall  forfeit  the  sum  of  one  hundred  dollars  per  day  from 
the  time  fixed  by  the  commissioners  for  the  completion  of  the  work  required, 
until  such  work  shall  be  actually  completed,  to  be  recovered  to  the  use  of  the 
state  by  suit  instituted  by  said  commissioners  in  any  court  of  competent  juris- 
diction; provided,  that  said  commissioners  shall  not  require  such  new  station, 
switch  or  side-track  to  be  established  within  less  than  six  miles  of  one  already 
established. 

Statement  of  rates  of  freight  and  fare. 

Sec.  6.  Within  thirty  days  after  the  appointment  of  said  commissioners,  they 
shall  cause  a  copy  of  this  act  to  be  served  upon  every  such  railroad  corporation 
engaged  in  the  business  of  transportation  within  this  state;  Avithin  ten  days 
after  the  receipt  of  such  notice,  it  shall  be  the  duty  of  such  corporation  respect- 
ively to  file  with  the  commissioners,  and  in  the  office  of  the  secretary  of  state, 
and  in  the  office  of  the  county  clerk  of  each  county  in  which  the  road  is  located, 
a  copy,  verified  by  the  oath  or  affirmation  of  the  president,  or  other  chief  exec- 
utive officer,  of  all  and  singular  the  tariffs  and  rates  of  freight,  passage  money, 
commutation  rates  and  charges,  together  \vith  copies  of  all  their  rules,  regula- 
tions and  instructions  to  employees,  concerning  the  carriage  of  persons  and 
merchandise,  under  which  the  road  was  being  operated  on  the  first  day  of  Jan- 
uary, eighteen  hundred  and  seventy-six;  and  it  shall  not  be  lawful  for  any  of 
said  corporations  to  increase  any  rates  of  freight  or  passage,  or  to  raise  the 
classification  of  any  species  of  goods,  or  to  change  any  rule  or  instruction  to  em- 
ployees in  such  manner  as  to  increase  the  cost  of  transportation  over  and  above 
the  rates  charged  in  such  tariff  or  in  use  on  the  first  day  of  January,  eighteen 
hundred  and  seventy-six;  provided,  nevertheless,  that  any  such  railroad  com- 
pany may  issue  excursion  tickets  at  reduced  rates,  for  special  trains,  or  between 
certain  places,  and  for  a  fixed  time. 
Railroad  companies  to  furnish  information  to  commissioners. 

Sec.  7.  The  several  transportation  companies  or  corporations  operating  any 
railroad  in  this  state,  the  cars  on  which  are  propelled  by  steam,  shall  at  all 
times,  on  demand,  furnish  to  the  commissioners  any  and  all  information  re- 
quired of  them,  concerning  the  condition,  management,  aud  operation  of  the 

647 


5491  CIVIL  CODE. 

railroads  under  their  control  respectiveh",  and  particularly  with  copies  of  all 
leases,  eontracts,  and  agreements  for  transportation  with  express  companies  or 
otherwise,  to  which  they  are  parties.  The  commissioners  shall  cause  blanks  to 
be  prej^ared  proposing  questions  calculated  to  elicit  facts  and  statistics,  from 
which  may  be  deduced  the  results  hereinafter  specified  as  necessary  to  be  accu- 
rately known  by  the  people  and  the  legislature;  such  blanks  shall  be  furnished 
to  the  several  corporations  in  season  to  be  filled  in  and  returned  to  the  commis- 
sioners on  or  before  the  first  da}^  of  October  of  each  year.  They  shall  be  sworn 
to  by  the  j^resident  or  other  executive  officer,  and  by  the  auditor,  secretary,  or 
principal  bookkeeper  of  the  corporation  making  the  same,  respectively.  They 
shall  be  tabulated  by  the  commissioners,  and  the  reports,  together  with  the 
tabulations  thereof  and  the  deductions  therefrom,  and  the  record  of  all  the 
matters  herein  required  to  be  reported  to  the  legislature,  with  the  drafts  of  all 
such  bills  as  the  commissioners  desire  to  recommend  for  passage,  shall  be  sub- 
mitted to  the  legislature  on  the  first  day  of  the  next  session  thereof. 

Animal  reports  of  companies  must  stdte. 

Sec.  8.  It  is  hereby  made  the  duty  of  the  president,  or  other  executive  officer, 
in  charge  of  each  and  every  railroad  company  having  a  line  of  railroad  in  this 
state,  to  make  an  annual  report  to  the  commissioners  for  the  year  ending  on  the 
thirtieth  day  of  June  preceding,  which  report  shall  state: 

Stock  and  debts. 

1.  The  amount  of  capital  stock  paid  in. 

2.  The  amount  of  capital  stock  unpaid. 

3.  The  amount  of  funded  debt. 

4.  The  amount  of  floating  debt. 

Cost  of  road  and  equipments. 

5.  Cost  of  construction. 
G.  Cost  of  right  of  way. 

7.  Cost  of  equipment. 

8.  All  other  items  embraced  in  cost  of  road  and  equipments,  not  embraced  in 
the  preceding  schedule. 

Characteristics  of  road. 

9.  Length  of  single  main  track  laid  with  iron  or  steel. 

10.  Length  of  double  main  track. 

11.  Length  of  branches,  stating  whether  they  have  single  or  double  track, 

12.  Aggregate  length  of  sidings  and  other  tracks  not  above  enumerated; 
total  length  of  iron  embraced  in  preceding  heads. 

13.  Maximum  grade,  with  its  length  in  main  road,  and  also  in  branches. 

14.  The  shortest  radius  of  curvature  and  locality  of  each  curve,  with  length 
of  curve  in  main  road,  and  also  in  branches. 

15.  Total  degrees  of  curvature  in  main  road,  and  also  in  branches. 
IG.  Total  length  of  straight  line  in  main  road,  and  also  branches. 

17.  Number  of  wooden  bridges,  and  aggregate  length  in  feet. 

18.  Number  of  iron  bridges,  and  aggregate  length  in  feet. 

19.  Number  of  stcme  bridges,  and  aggregate  length  in  feet. 

20.  Number  of  wooden  trestles,  and  aggregate  length  in  feet. 

21.  The  greatest  age  of  wooden  bridges. 

22.  The  average  age  of  wooden  bridges. 

23.  The  greatest  age  of  wooden  trestles. 

24.  The  number  and  kind  of  new  bridges  built  during  the  year,  and  length 
in  feet. 

25.  The  length  of  road  unfenced  on  either  side,  and  the  reason  therefor. 

G48 


RAILROAD  CORPORATIONS.  5491 

26.  Number  of  engines. 

27.  Number  of  passenger  cars. 

28.  Number  of  express  and  baggage  cars. 

29.  Number  of  freight  cars. 

30.  Number  of  other  cars. 

31.  The  highest  rate  of  speed  allowed  by  express  passenger  trains  when  in 
motion. 

32.  The  highest  rate  of  speed  allowed  by  mail  and  accommodation  trains 
when  in  motion. 

33.  The  highest  rate  of  speed  allowed  by  freight  trains  when  in  motion. 

34.  The  rate  of  fare  for  through  passengers  charged  for  the  respective  classes 
per  mile. 

35.  The  rate  of  fare  for  local  passengers  charged  for  the  respective  classes 
per  ruile. 

36.  The  highest  rate  per  ton  per  mile  charged  for  the  transportation  of  the 
various  classes  of  through  freight. 

37.  The  highest  rate  per  ton  per  mile  charged  for  the  transportation  of  the 
various  classes  of  local  freight. 

Doings  of  the  year. 

38.  The  length  of  new  iron  or  steel  laid  during  the  year. 

39.  The  length  of  re-rolled  iron  laid  during  the  year. 

40.  The  number  of  miles  run  by  passenger  trains. 

41.  Tlie  number  of  miles  run  by  freight  trains. 

42.  The  number  of  through  passengers  carried  in  cars. 

43.  The  number  of  local  passengers  carried  in  cars. 

44.  The  number  of  tons  of  through  freight  carried. 

45.  The  number  of  tons  of  local  freight  carried. 

E arnings  for  the  year. 

46.  From  transportation  of  through  passengers. 

47.  From  transjDortation  of  local  passengers. 

48.  From  transportation  of  through  freight. 

49.  From  transportation  of  local  freight. 

50.  From  mail  and  express. 

51.  From  all  other  sources;  total  earnings  for  the  year. 

Expenditures  for  the  year. 

52.  For  construction  and  new  equipment. 

53.  For  maintenance  of  way  and  structures. 

54.  For  transportation  expenses,  including  those  of  stations  and  trains. 

55.  For  dividends:  rate  per  cent,  and  amount. 

56.  57,  58,  59,  60.  All  other  expenditures. 

61.  Total  expenditures  during  the  year. 

62.  The  number  and  kind  of  farm  animals  killed,  and  amount  of  damages 
paid  therefor. 

63.  A  statement  of  all  casualties  resulting  in  injuries  to  persons,  and  the  ex- 
tent and  cause  thereof;  and  such  other  and  further  information  as  may  bo 
required  by  the  commissioners. 

Penalty  for  neglect  to  comply. 

Sec.  9.  Any  transportation  company,  subject  to  the  provisions  of  this  act, 
which  shall  neglect  or  refuse  to  make  and  file  its  report,  as  provided  in  section 
eight  of  this  act,  or  shall  neglect  or  refuse  to  file  its  tariffs  of  freights  and  fares 
with  the  commissioners,  as  provided  in  section  six  of  this  act,  shall  forfeit  and 
pay  to  the  State  of  California  the  sum  of  not  less  than  one  hundi-ed  nor  more 

649 


5491  CrS'IL  CODE. 

thau  OBG  thousand  dollars  for  each  and  every  day  of  such  neglect  or  refusal, 
the  same  to  be  recovered  by  suit  in  any  court  of  comj)etent  jurisdiction. 
FrosfcuHon. 

Sec.  10.  All  i^rosecutions  against  any  transportation  company,  railroad  com- 
pany, or  any  officer  or  employee  thereof,  for  forfeitures,  jienalties,  or  fines,  for 
the  violation  of  any  of  the  laws  relating  to  said  comj^anies  or  roads,  shall  be 
by  action  in  the  name  of  the  jDeople  of  the  State  of  California,  and  it  shall  be 
the  duty  of  such  commissioners  to  bring  in  any  couii  of  competent  jui-isdiction 
all  such  actions. 

Commiitsitmers  may  examine  books  of  companies. 

Sec.  11.  Each  commissioner  shall  have  power,  thereunto  authorized  by  the 
board,  to  examine  the  books  and  paj^ers  of  any  railroad  corporation  or  line, 
and,  also,  any  railroad  officer,  agent,  or  emplo3ee,  under  oath,  concerning  the 
condition,  management,  and  oi)eratiou  of  the  railroads  under  their  direction 
and  control;  and  it  is  hereby  made  the  duty  of  the  superintendent  of  each 
transjjortation  and  railroad  company  in  the  state  to  notify  said  commissioners, 
by  telegraph,  of  all  accidents,  immediately  ujdou  their  occurrence. 

Comminsionei's  may  fix  route  in  cities  and  towns. 

Sec  12.  Whenever  the  directors  of  any  railroad  company  shall  fail  to  agree 
with  the  municipal  authorities  of  vcxxj  town  or  city,  as  to  the  route  of  their  rail- 
road in  any  such  town  or  citj',  either  party  may  petition  the  commissioners  of 
transportation  to  fix  the  route  in  said  town  or  city,  and  said  commissioners, 
after  due  notice  to  the  other  party,  shall  hear  the  case,  and  fix  the  route  in  such 
town  or  cit3^ 

Certain  cases  to  he  decided  by  commissioners. 

Sec.  13.  It  shall  be  the  dut}'  of  the  commissioners  of  transportation,  upon 
the  petition  of  either  party,  after  twenty  days'  notice  to  the  other,  to  hear  and 
decide  the  following  cases:  The  compensation  to  be  paid  by  one  railroad  to 
another  for  transporting  passengers,  merchandise,  and  cars.  To  fix  such 
periods  and  time-tables,  having  reference  to  the  convenience  and  interest  of  the 
corporation,  and  the  public  to  be  accommodated  thereby.  To  determine  what 
accommodations  are  required;  and,  also,  the  compensation  to  be  paid  for  the 
use  of  terminal  accommodations,  and  for  the  receiving,  transferring,  and  for- 
warding of  passengers  and  freight. 
Awards  of  commissioners  to  be  binding. 

Sec  14.  Any  award  made  by  the   commissioners  of  transjiortation   shall  be 
binding  upon  the  respective  corporations  and  joarties  interested  therein,  until 
the  same  shall  have  been  revised  or  altered  by  said  commissioners,  or  reversed 
on  a2:)peal  to  the  supreme  court,  as  hereinafter  iDrovided. 
Awards  subject  to  revision. 

Sec  15.  Any  award  made  by  the  commissioners  of  transportation  shall  be 
returnable,  with  the  evidence,  on  the  request,  in  writing,  of  any  party  affected 
thereby,  and  filed,  within  thirty  days  after  rendering  of  such  award,  in  the 
county  court  of  the  county  in  which  the  controversy  arose,  and  shall  be  there 
subject  to  revision,  in  the  same  manner  as  if  the  said  commissioners  had  derived 
their  jtower  to  act  in  the  premises  under  the  appointment  of  said  court,  with 
the  right  of  appeal  to  the  supreme  court,  as  in  other  cases. 

Suits  to  recover  pe7ialties. 

Sec.  1G.  It  shall  be  the  duty  of  the  district  attorneys  of  the  several  counties 
within,  into,  or  through  which  any  railroad  runs,  or  is  located,  or  worked,  upon 
being  insti-ucted  by  said  commissioners,  to  sue  for  and  recover  all  penalties 
for  the  violation  of  the  railroad  laws  of  this  state. 

G50 


RAILEOAD  CORPORATIONS.  5491 

Claffs  of  railroads  liable. 

Sec.  17.  The  i:)rovisious  of  tliis  act  shall  ho  applicahle  to  railroads,  the  cars 
of  which  are  proj^elled  by  steam,  now  or  liereafter  to  ho  operated  liy  corpora- 
tions, trustees,  companies,  or  individuals,  in  this  state. 

Pi'inting  of  report. 

Sec.  18.  There  shall  be  printed  two  thousand  five  hinidrod  copicH  of  the  re- 
port of  the  commissioners  of  transportation. 

Governor  may  remove  commissioners. 

Sec  19.  The  governor  shall  remove  the  commissioners  of  transportation  at 
any  time,  when  he  becomes  satisfied  that  it  is  for  the  public  good. 

CHAPTEK   n. — OF    EXTORTION   AND    DISCRIAHNATION. 

Extortion  defined. 

Section  1.  A  railroad  company  shall  be  deemed  guilty  of  extortion  in  the 
following  cases: 

1.  When  it  shall  knowingly  or  willfully  charge,  demand,  or  receive  from  any 
passenger,  as  his  fare  from  one  station  or  place  to  another,  any  greater  sum 
than  is  specified  as  the  fare  between  such  stations  or  places,  for  the  same  class 
of  passage  and  in  the  same  direction,  in  its  tariff  of  fares  on  file  with  the  board 
of  transj^ortation  commissioners; 

2.  "When  it  shall  knowingly  or  willfully  charge,  demand,  or  receive  from  any 
person  or  persons,  as  the  rate  of  freight  on  goods  or  merchandise,  any  greater 
sum  than  is  sjDecified  as  the  rates  for  the  like  quantity  of  goods  or  merchandise 
of  the  same  class,  between  the  same  places  and  in  the  same  direction,  in  its 
printed  tariff  of  freights  on  file  with  said  commissioners; 

3.  When  it  shall  knowingly  or  willfully  charge,  collect,  or  receive  from  any 
person  or  persons,  a  greater  amount  of  rate  of  toll  or  compensation  than  it  shall 
at  the  same  time  charge,  collect,  or  receive  from  any  other  persons  for  receiv- 
ing, handling,  storing,  or  delivering  freight  of  the  same  class  and  like  quantity, 
at  the  same  place; 

4.  When  it  shall  knowingly  or  willfully  charge,  demand,  or  receive  from  any 
person  or  persons,  any  greater  sum  for  passage  or  freight  than  from  any  other 
person  or  persons,  at  the  same  time,  between  the  same  places,  in  tlie  same 
direction,  for  the  same  class  of  passage,  or  for  the  like  quantity  of  goods  of  the 
same  class; 

5.  When  it  shall  knowingly  or  willfully  charge,  demand,  or  receive  as  com- 
pensation for  receiving,  storing,  handling,  or  delivering,  or  for  transporting 
any  lot  of  goods  or  merchandise,  any  greater  sum  than  it  shall,  by  or  through 
any  of  its  authorized  agents,  wherever  situated,  have  agreed  to  charge  for  such 
service  previously  to  the  performance  thereof. 

Unjust  discrimination  defined. 

Sec  2.  A  railroad  company  shall  be  deemed  guilty  of  unjust  discrimination 
in  the  following  cases: 

1.  When  it  shall  directly,  knowingly,  or  willfully  charge,  demand,  or  receive 
from  any  person  or  persons,  any  less  sum  for  passage  or  freight  than  from  any 
other  person  or  persons  (except  as  in  this  act  hereinafter  provided),  at  the  same 
time,  between  the  same  places,  and  in  the  same  direction,  for  the  like  class  of 
passage,  or  for  the  like  quantity  of  goods  of  the  same  class; 

2.  When  it  shall,  directly  or  indirectly,  knowingly  or  willfully  charge, 
demand,  or  receive  from  any  person  or  persons,  as  compensation  for  receiving, 
handling,  storing,  or  delivering  any  lot  of  goods  or  merchandise,  any  less  sum 
than  it ''shall  charge,  collect,  or  receive  from  any  other  person  or  persons,  for 

651 


5491  CIVIL  CODE. 

the  like  service,  to  a  like  quantity  of   goods  of   the  same  class,  at  the  same 

place. 

Free  passes. 

Sec.  3.  It  shall  be  unlawful  for  any  such  railroad  company  to  grant  free 
passes  for  travel  within  this  state,  exce^jt  to  the  following  persons: 

1.  Directors,  officers,  agents,  and  employees  of  the  company,  and  their 
families; 

2.  Officers  and  agents  and  railroad  contractors  of  other  railroads  or  telegraph 
companies; 

3.  Destitute  persons; 

4.  The  members  of  the  board  of  transportation,  commissioners  of  the  State 
of  California,  their  secretary,  attorney,  and  employees,  while  traveling  in  the 
discharge  of  their  official  duties; 

5.  Public  messengers,  troops,  and  other  persons,  who  are,  under  existing 
laws  or  any  contract  of  such  railroad  company  with  this  state,  to  be  transported 
free  of  charge. 

Every  such  railroad  company  shall  keep  a  record  of  all  free  passes  issued  by 
it,  except  such  as  are  issued  by  it  to  officers,  agents,  employees,  and  their 
families,  and  of  the  several  classes  thereof,  and  of  the  number  of  times  each 
pass  shall  be  used,  and  shall  rejDort  the  same  to  the  transportation  commis- 
sioners whenever  required. 
Penally  for  extortion. 

Sec.  4.  If  any  such  railroad  company  shall  be  guilty  of  extortion,  as  defined 
in  this  act,  it  shall  forfeit  and  pay  to  the  person  or  persons  aggrieved  three 
times  the  amount  of  the  damages  sustained  by  him  or  them,  together  with  the 
costs  of  suit,  to  be  recovered  in  any  court  of  competent  jurisdiction.  It  shall 
be  the  duty  of  the  board  of  transportation  commissioners  to  prosecute  all  such 
suits  for  the  plaintiff. 
Penalty  for  discrimination. 

Sec.  5.  If  any  such  railroad  comj^any  shall  be  guilty  of  unjust  discrimination, 
as  defined  in  section  two  of  this  chapter,  it  shall  forfeit  and  pay  the  sum  of  one 
thousand  dollars  for  each  offense,  to  be  recovered  on  complaint  of  the  board  of 
transportation  commissioners,  as  in  the  last  section  provided.  All  forfeitures 
under  this  section  shall  be  paid  into  the  state  treasury  for  the  benefit  of  the 
public  schools  of  the  state. 

Penalty  for  unlawful  issue  of  passes. 

Sec  G.  Any  such  railroad  company  that  issues  free  passes  to  any  person  or 
persons  other  than  those  specified  in  section  three  of  this  chapter,  or  shall 
permit  any  person  whatever  to  travel  free  upon  their  cars,  except  upon  the 
exhibition  of  free  passes  issued  as  provided  in  said  section,  shall  forfeit  and  pay 
for  each  offense  the  sum  of  one  hundred  dollars,  to  be  recovered  and  paid  over, 
one  half  to  the  state  treasurer,  and  the  other  half  to  the  informer,  as  in  the  last 
section  provided. 
Prosecutions  for  violation. 

Sec.  7.  "Whenever  it  shall  come  to  the  knowledge  of  the  board  of  transi:)or- 
tation  commissioners  that  the  provisions  of  this  act  are  violated  by  any  such 
railrf)ad  corporation  in  this  state,  it  shall  be  their  duty  to  investigate  the  charge; 
and  whenever,  in  their  judgment,  the  facts  warrant  prosecution,  it  shall  be 
their  duty  to  immediately  cause  suits  to  be  commenced  and  prosecuted  against 
any  such  corjxiration  which  shall  have  been  guilty  of  such  violation.  Such  suits 
may  be  brought  in  any  court  of  competent  jurisdiction.  All  such  suits  shall 
be  prosecuted  by  the  district  attorney  of  the  county  where  such  action  is 
brought. 

G52 


STREET  RAILROAD  CORPORATIONS.  5401-5408 

Stop-over  tickets. 

Sec.  8.  Any  person  traveling  upon  any  such  railroad  in  this  state,  desiring  to 
stop  over  at  any  station  between  the  point  of  his  departure  and  destination, 
shall,  upon  request,  be  entitled  to  receive  from  the  conductor  of  llje  train, 
without  further  charge  thereon,  a  stop-over  ticket,  which  shall  be  good  for  tlio 
remainder  of  his  journey,  and  may  be  used  at  any  time  within  six  months  after 
it  shall  have  been  issued. 
Act,  hoio  applied. 

Sec.  9.  The  j^rovisions  of  this  act  shall  be  deemed  ppplicable  to  such  railroads 
as  herein  mentioned,  whether  operated  by  corporations,  trustees,  or  own<r  or 
owners  not  incorporated. 

Sec.  10.  This  act  shall  take  effect  and  be  in  force  from  and  after  its  passage. 


TITLE  lY. 


I 


5. 

5497.  Authority  to  lay  street  railroad  track,  hoiv  obtained. 

Sec.  497.  Authority  to  lay  railroad  tracks  through  the  streets  and  public 
highways  of  any  incorporated  city  or  town  may  be  obtained,  for  a  term  of  years 
not  exceeding  fifty,  from  the  trustees,  covmcil,  or  other  body  to  whom  is  in- 
trusted the  government  of  the  city  or  tow^n,  under  such  restrictions  and  limita- 
tions, and  upon  such  terms  and  payment  of  license  tax,  as  the  city  or  town 
authority  may  provide.  In  no  case  must  permission  be  granted  to  propel  cars 
upon  such  tracks  otherwise  than  by  horses,  mules,  or  by  wire  ropes  running 
under  the  streets  and  moved  by  stationary  steam  engines,  unless  for  special 
reasons,  as  hereinafter  provided.  [Ameiid^nent,  approved  March  0,  187G;  Amend- 
ments 1875-6,  76;  took  effect  from,  pasmge.''''^ 

5498.  Conditions,  on  grant  of  rigid  of  ivay. 

Sec.  498.  The  city  or  town  authorities,  in  granting  the  right  of  way  to  street 
railroad  corporations,  in  addition  to  the  restrictions  which  they  are  authorized 
to  impose,  must  require  a  strict  compliance  with  the  following  conditions,  ex- 
cept in  the  cases  of  prismoidal  or  other  elevated  railways.  In  such  cases 
said  railway  shall  be  required  to  be  constructed  in  such  a  manner  as  will 
present  the  least  obstruction  to  the  freedom  of  the  streets  on  which  it  njay  be 
erected,  when  allowed  by  the  granting  power: 

1.  To  construct  their  tracks  on  those  portions  of  streets  designated  in  the 
ordinance  granting  the  right,  which  must  be  as  nearly  as  possible  in  the  middle 
thereof; 

2.  To  plank,  pave,  or  macadamize  the  entire  length  of  the  street  used  by 
their  track,  between  the  rails,  and  for  two  feet  on  each  side  thereof,  and  between 
the  tracks,  if  there  be  more  than  one,  and  to  keep  the  same  constantly  in  repair, 
flush  with  the  street,  and  with  good  crossings; 

3.  That  the  tracks  must  not  be  more  than  five  feet  wide  within  the  rails,  and 
must  have  a  space  between  them  sufficient  to  allow  the  cars  to  pass  each  other 
freely.  [Amendment,  approved  April  3,  1876;  Amendments  1875-G,  77;  took 
effect  from  passage.'-'"'' 

(a)  The  original  section  did  not  have  the  words  "  or  er;"  nor  the  words,  in  the  second  ^ubdivlslon._ "  and 
by  wire  ropes  runuiog  under  the  streets,  and  moved  by  between  tlie  tracl^H.  it  thero  be  '""r<;  {^^"  ""«;  .J^?. 
stationary  steam  engines."  third  subdiviscn  ^1»'' ^^^''t  ^  inXln  of  •   lltw/^n 

(b)  The  original  section  did  not  have  the  words  "  ex-  and  read  "  between  the  track  instead  of  between 
cent  in  the  cases  of  prismoidal  or  other  elevated  rail-  them."  ^  j  i,.,  .„*  „#  AT-i-^h  <in  itni. 
ways.  In  such  cases  said  railway  shall  be  required  to  It  was  previously  amended  by  act  of  March  M1K74 , 
be  coustrurted  in  such  a  manner  as  will  present  the  Amendments  18,:i-l.  "^y^- ^^J »«  t"/*"" ^  ,^vp  tLfwords 
least  obstruction  to  the  freedom  of  the  street  on  which  ment  in  the  test  except  that  it  d^  tot  ba^  e  the  words 
it  may  be  erected,  when  allowed  by  the  granting  pow-  first  above  quoted,  commencing  with     excepx. 

653 


5499-5506  CIVIL  CODE. 

5499.  Two  corporations  may  use  (he  same  track. 

Sec.  499,  Two  corporations  may  be  permitted  to  use  the  same  street,  each 
paying-  an  equal  portion  for  the  construction  of  the  track;  but  in  no  case  must 
two  raih-oad  corporations  occuj)y  and  use  the  same  street  or  track  for  a  distance 
of  more  than  five  blocks. 

5500.  Crossing  tracks. 

Sec.  500.  Any  proposed  railroad  track  may  be  permitted  to  cross  any  track 
already  constructed,  the  crossing  being  made  as  provided  in  Chapter  II,  Title  III, 
of  this  Part.  In  la^-ing  down  the  track  and  preparing  therefor,  not  more  than 
one  block  must  be  obstructed  at  any  one  time,  nor  for  a  longer  period  than  ten 
working  days. 

5501.  Bates  of  fare,  speed,  etc. 

Sec.  501.  The  rates  of  fare  on  the  cars  must  not  exceed  ten  cents  for  one 
fare,  for  any  distance  under  tbree  miles.  The  cars  must  be  of  the  most 
approved  construction  for  comfort  and  convenience  of  passengers,  and  pro- 
vided with  brakes  to  stop  the  same,  when  required.  The  rate  of  speed  must 
not  be  greater  than  eight  miles  per  hour.  A  violation  of  the  provisions  of  this 
section  subjects  the  corporation  to  a  fine  of  one  hundred  dollars  for  each 
oll'ense. 

5502.  Time  allowed  for  co^npletion  of  ivork  of  laying  down  track. 

Sec  502.  "Work  to  construct  the  railroad  must  be  commenced  within  one 
year  from  the  date  of  the  ordinance  granting  the  right  of  way  and  the  filing  of 
articles  of  incorporation,  and  the  same  must  be  completed  within  three  years 
thereafter.  A  failure  to  comply  with  these  jDrovisions  works  a  forfeiture  of  the 
right  of  way  as  well  as  of  the  franchise,  unless  the  uncompleted  portion  is 
abandoned  by  the  corporation,  with  the  consent  of  the  authorities  granting 
the  right  of  way — such  abandonment  and  consent  to  be  in  writing. 

5503.  May  make  further  regulations  and  rules. 

Sec  503.  Cities  and  towuis  in  or  through  which  street  railroads  run  may 
make  such  further  regulations  for  the  government  of  such  street  railroads  as 
may  be  necessaiy  to  a  full  enjoyment  of  the  franchise  and  the  enforcement  of 
the  conditions  provided  herein. 

5504.  Penalty  for  overcharging. 

Sec  504.  Any  corporation,  or  agent  or  employee  thereof,  demanding  or 
charging  a  greater  sum  of  money  for  fare  on  the  cars  of  such  street  railroad 
than  that  fixed,  as  i^rovided  in  this  title,  forfeits  to  the  person  from  whom  such 
sum  is  received,  or  who  is  thus  overcharged,  the  sum  of  two  hundred  dollars, 
to  be  recovered  in  a  civil  action,  in  any  justice's  court  having  jurisdiction  there- 
of, against  the  corporation. 

5505.  2b  provide  and  furnish  passenger  tickets. 

Sec.  505.  Every  street  railroad  coi-poration  must  provide,  and,  on  request, 
furnish  to  all  persons  desiring  a  passage  on  its  cars,  any  required  quantity  of 
passenger  tickets  or  checks,  each  to  be  good  for  one  ride.  Any  corporation 
failing  to  provide  and  furnish  tickets  or  checks  to  any  person  desiring  to  pur- 
chase the  same  at  not  exceeding  the  rate  hereinbefore  prescribed,  shall  forfeit 
to  such  pei-son  the  sum  of  two  hundred  dollars,  to  be  recovered  as  provided  in 
the  preceding  section.  [AmendmeiU,  approved  March  30,  1874;  Amendments 
lH13-i,  21'.);  took  el/Wl  July  1,1H14:.'''^  ■       * 

5506.  Prima  facie  evidence  of  agency. 

Sec  500.  Upon  the  Irial  of  an  action  for  any  of  the   sums  forfeited,  as  pro- 
fa)  The  orlKinal  Bcction  had  "60"  before  the  second  "  ijrovide,"  and  instead  of  "  iirescribcd,  shall  forfeit" 
had  "  fixed,  uiubt  ijay." 

G54 


STREET  RAILEOAD  CORPORATIONS.  550G-5511 

vided  in  the  two  i^receding  sections,  proof  that  the  person  dt'iiiaiidin^'  or  receiv- 
ing the  money  as  fare,  or  for  the  sale  of  the  ticket  or  check,  was  at  the  time  of 
making  the  demand  or  receiving  the  money,  engaged  in  an  (jfficc  c.f  the  corpo- 
ration, or  vehicle  belonging  to  the  corporation,  shall  be  i)nnia  faci(;  evidence 
that  such  person  was  the  agent,  servant,  or  employee  of  the  corporation,  to 
receive  the  money  and  give  the  ticket  or  check  mentioned.  [Amni(biirnt,  ap- 
proved Mai'ch  30,  1874;  Ammdmenls  1873-4,  213;  took  effect  July  I,  1874. '*' ' 

5507.  Bights  reserved  to  city  or  town. 

Sec.  507.  In  eveiy  grant  to  construct  street  railroads,  the  riglit  to  grade, 
sewer,  pave,  macadamize,  or  otherAvise  improve,  alter,  or  repair  the  streets  or 
highways,  is  reserved  to  the  corporation,  and  cannot  be  alienated  or  impaired; 
such  work  to  be  done  so  as  to  obstruct  the  railroad  as  little  as  possible;  and,  if 
required,  the  corporation  must  shift  its  rails  so  as  to  avoid  the  obstructions 
made  thereby.  [Amendnwnt,  approved  March  30,  1874;  Anxendvxcrds  1873-4, 
214;  took  effect  July  1,  1874.^"' 

5508.  License  to  be  paid  to  city  or  toion. 

Sec.  508,  Each  street  railroad  corporation  must  pay  to  the  authorities  of  the 
city,  town,  county,  or  city  and  county,  as  a  license  upon  each  car,  such  sum  ap 
the  authorities  may  fix,  not  exceeding  fifty  dollars  per  annum  in  the  city  of  San 
Francisco,  nor  more  than  twenty-five  dollars  per  annum  in  other  cities  or  towns. 
Where  any  street  railroad  connects  or  runs  through  two  or  more  cities  or  towns, 
a  projiortionate  or  equal  share  of  such  license  tax  must  be  paid  to  each  of  the 
cities  or  towns;  and  no  such  license  tax  is  due  the  county  authorities  where  the 
same  is  paid  to  any  city  or  town  authority. 

5509.  Track  for  grading  pnirposes. 

Sec.  509.  The  right  to  lay  down  a  track  for  grading  purposes,  and  maintain 
the  same  for  a  period  not  to  exceed  three  years,  may  be  granted  by  the  cor- 
porate authorities  of  any  city  or  town,  or  city  and  county,  or  supervisors  of  any 
city  or  county,  but  no  such  track  must  remain  more  than  three  years  upon  any 
one  street;  and  it  must  be  laid  level  with  the  street,  and  must  be  ojjerated  under 
such  resti'ictions  as  not  to  interfere  with  the  use  of  the  street  by  the  public. 
The  corporate  authorities  of  any  city  or  town,  or  city  and  county,  may  grant 
the  right  to  use  steam  or  any  other  motive  power  in  propelling  the  cars  used  on 
such  grading  track,  when  public  convenience  or  utility  demands  it,  but  the 
reasons  therefor  must  be  set  forth  in  the  ordinance,  and  the  right  to  rescind  the 
ordinance  at  any  time  reserved. 

5510.  What  provisions  of  Title  III  are  applicable  to  street  railroads. 

Sec.  510.  Street  railroads  are  governed  by  the  provisions  of  Title  III  of  this 
Part,  so  far  as  they  are  applicable,  unless  such  railroads  are  therein  specially 
excepted.  [Amendment,  approved  March  30,  1874;  Amendments  1873-4,  214; 
took  effect  July  1,  1874.^^^ 

5511.  Title  applicable  to  natural  persons  alike  with  corporations. 

Sec.  511.  When  a  street  railroad  is  constructed,  owned,  or  operated  by  any 
natural  person,  this  title  is  applicable  to  such  person  in  like  manner  as  it  is 
applicable  to  corporations. 

(a)  Originalsection:  iJig  the  right  to  construct  Btreot  railroads  within  Its 

Sec.  5i)(;.  Upon  the  trial  of  any  action  for  the  for-  limits.  nuiKt  reserve  the  rit'ht  to  gruie,  sewtr.  paNe. 

feiture  named  in  the  two  preceding  sectione,  proof  macadamize  or  otherwise  iiupiove.  alter  or  rcpsT  the 

that  the  person  demanding  or  receiving  such  sum  of  streets  ur  highways  permitted  to  ^'J'  "•-^•'  /'y  "''; ''"j}'"; 

money  as  fare,  or  for  the  sale  of  such  ticket  or  check,  ration,  the  work  to  be  so  done  by  the  i .t>  or  t<'»n  •«  to 

was,  at  the  time  of  making  such  demand  or  receiving  obstruct  the  railroad  as  bttle  as  I'^'^^h '''•  "^''  ^'''^° 

such  moneys,  engaged  on  or  at  any  car,  omnibus,  or  sm-h  works  make  the  same  °«|-;«f  jyj  "'«, '°^""  i^° 

vehicle  of  af,y  railroad  belonging  to  such  corporation,  is  must  shift  its  rails  so  as  to  avoid  tUoobbtructlouu  made 

primary  evidence  that  such  person  so  demanding  or  thereby. 

receiving  such  moneys  was  the  agent,  servant,  or  em-  (c)   Original  section: 

ployee  of  the  corporation  so  owning,  using  or  employ-  Skc.  MO.  All  the  provisions  ^f  T'"«  "J  "L  n  streH 

ing  such  rii Iron d  are  api)licable  to  street  railroads,  unlesn  wh<  n' strett 

(6r(Sigrnarsectionr  railr^a'ds  are  therein  speciaUy  except,  d,  „r  .he  pre. 

Sec.  5U7.  Every  city,  town,  or  city  and  county,  grant-  visions  are  palpably  inapplii-aOle. 

655 


5512-5515  Cn^IL  CODE. 


TITLE  Y. 

5512.  Three  commissioners  to  act  ivifh  surveyor. 

Sec.  512.  "Where  a  coi-poration  is  formed  fc^r  the  construction  and  mainte- 
nance of  a  wagon  road,  the  road  must  be  laid  out  as  follows: 

Three  commissioners  must  act  in  conjunction  with  the  surveyor  of  the  cor- 
poration, two  to  be  a2:)pointed  by  the  board  of  supervisors  of  the  county 
through  which  the  road  is  to  run,  and  one  by  the  corporation,  who  must  lay 
out  the  proposed  road  and  report  their  proceedings,  together  with  the  map  of 
the  road,  to  the  suj)en'isors,  as  j)rovided  in  the  succeeding  section.  [Amend- 
ment, approved  March  30,  1874;  Amendments  1873-4,  214;  took  effect  July  1, 
1874.<''> 

5513.  Survey  and  map  to  he  filed  and  approved  by  supervisors. 

Sec.  513.  "When  the  route  is  surveyed,  a  map  thereof  must  be  submitted  to 
and  filed  with  the  board  of  supervisors  of  each  county  through  or  into  w^hich 
the  road  runs,  giving  its  general  course  and  the  principal  points  to  or  by  which 
it  runs,  and  its  width,  which  must  in  no  case  exceed  one  hundred  feet,  and  the 
superA-isors  must  either  approve  or  reject  the  sui"vey.  If  apjiroved,  it  must  be 
entered  of  record  on  the  journal  of  the  board,  and  such  approval  authorizes  the 
use  of  all  public  lands  and  highways  over  which  the  survey  runs;  but  the  board 
of  supervisors  must  require  the  corporation,  at  its  own  expense,  and  the  corpo- 
ration must  so  change  and  open  the  highway  so  taken  and  used  as  to  make  the 
same  as  good  as  thej  were  before  the  appropriation  thereof;  and  must  so  con- 
struct all  crossings  of  public  highways  over  and  by  its  road,  aud  its  toll  gates, 
as  not  to  hinder  or  obstruct  the  use  of  the  same. 

5514.  lolls,  etc.,  to  be  collected. 

Skc.  514.  All  wagon  road  corporations  may  bridge  or  keep  ferries  on  streams 
on  the  line  of  their  road,  and  must  do  all  things  necessary  to  keep  the  same  in 
repair.  They  may  take  such  tolls  only  on  theu*  roads,  ferries  or  bridges,  as  are 
fixed  by  the  board  of  supervisors  of  the  proper  county  through  which  the  road 
passes,  or  in  which  the  ferry  or  bridge  is  situate,  except  that  in  the  counties  of 
Klamath,  Butte,  Del  Norte,  Plumas,  Humboldt  and  Sierra,  the  directors  may 
fix  their  own  tolls;  but  in  no  case  must  the  tolls  be  more  than  sufficient  to  pay 
fifteen  per  cent,  nor  less  than  ten  per  cent,  per  annum  on  the  cost  of  construc- 
tion, after  paying  for  rej^airs  and  other  expenses  for  attending  to  the  roads, 
bridges  or  ferries.  If  tolls,  other  than  as  herein  provided,  are  charged  or  de- 
manded, the  corporation  forfeits  its  franchise  and  must  pay  to  the  pai-ty  so 
charged  one  hundred  dollars  as  liquidated  damages.  [Amendment,  approved 
3Iarch28,  1874;  Amendments  1813-4:,  272;  took  effect  sixtieth  day  after  passage. '^^'^ 

5515.  No  tolls  to  be  cliarged  on  Jilyhioays  or  ji^Mic  roads. 

Sec  515,  When  any  highway  or  public  road  is  taken  and  used  by  any  wagon 
road  corporation  as  a  part  of  its  road,  the  corporation  must  not  place  a  toll  gate 
on  or  take  tolls  for  the  use  of  such  highway  or  public  road  by  teamsters,  trav- 
elers, drovers,  or  any  one  transporting  property  over  the  same. 

(a)  The  original  septlondld  not  have  the  first  clause  specified  counties  to  "fifteen  per  cent,  per  annum  of 
do^^Ti  to  and  including  the  words  "  as  follows."  After  the  amount  invested  in  the  coustruction  of  its  road, 
the  last  "superviBors"  it  had  the  words  "who  ap-  including  therein  the  cost  of  its  bridges  and  ferries, 
pointed  them."  and  a  dividend  among  the  stocliholders  equal  to  twelve 

(b)  The  original  section.  In  addition  to  the  counties  per  cent,  per  annum  upon  tlie  amount  bo  invested," 
named  above,  had  also  "  Trinity,  Shasta,"  and  "  Bislii-  etc  But  this  amendment,  by  operatiim  of  sectiun  "287 
you."  of  the  amendatory  act  (Amendments  187S-4,  'iO'J;  post, 

It  was  amended  by  act  of  March  30,  1R74  f  Amend-     8180^,  seems  never  to  have  taken  effect, 
ments  187;i-i,  21i),  so  as  to  restrict  the  tolls  in  the 

G56 


WAGON  KOAD  CORPORATIONS.  551G-5522 

5516.  Bates  of  toll  to  he  jiosted  at  gate. 

Sec.  516.  The  corporation  must  affix  and  keep  up,  at  or  over  each  gate,  or  in 
some  conspicuous  place,  so  as  to  be  conveniently  retul,  a  printetl  list  of  the 
rates  of  toll  levied  and  demanded. 

5517.  Toll  gatherer  may  detain  persons  until  they  pay  toll. 

Sec.  517.  Each  toll  gatherer  may  prevent  from  passin-,'  throu^^di  his  ^';ite  per- 
sons leading  or  driving  animals  or  vehicles  subject  to  toll,  until  they  shall  huvo 
paid,  respectively,  the  tolls  authorized  to  be  collected. 

5518.  Toll  gatherer  not  to  detain  any  person  unnecessarily. 

Sec.  518.  Every  toll  gatherer  who,  at  any  gate,  unreasonably  hinders  or 
delays  any  traveler  or  passenger  liable  to  the  payment  of  toll,  or  demands  or 
receives  from  any  person  more  than  he  is  authorized  to  collect,  for  each  oifcuse 
forfeits  the  sum  of  twenty-five  dollars  to  the  j)erson  aggrieved. 

5519.  Persons  avoiding  tolls  to  pay  five  dollars. 

Sec.  519.  Every  person  who,  to  avoid  the  payment  of  the  legal  toll,  with  his 
team,  vehicle,  or  horse,  turns  out  of  a  wagon,  turnpike,  or  plank  road,  or 
passes  any  gate  thereon  on  ground  adjacent  thereto,  and  again  enters  upon  such 
road,  for  each  offense  forfeits  the  sum  of  five  dollars  to  the  corporation  injured. 

5520.  Penalties  for  trespasses  on  property  of  corporation. 
Sec.  520.  Every  person  who: 

1.  Willfully  breaks,  cuts  down,  defaces  or  injures  any  mile  stone  or  post  on 
any  wagon,  turnpike,  or  plank  road;  or, 

2.  Willfully  breaks  or  throws  down  any  gate  on  such  road;  or, 

3.  Digs  up  or  injures  any  j^art  of  such  road  or  anything  thereunto  belong- 
ing; or, 

4.  Forcibly  or  fraudulently  passes  any  gate  thereon  without  having  paid  the 
legal  toll; 

For  each  ofi"ense  forfeits  to  the  corporation  injured  the  sum  of  twenty-five 
dollars,  in  addition  to  the  damages  resulting  from  his  wrongful  act. 

5521.  Bevenue,  hoiv  to  be  ajipropriated. 

Sec.  521.  The  entire  revenue  from  the  road  shall  be  approj)riated :  first,  to 
repayment  to  the  corporation  of  the  costs  of  its  construction,  together  with  the 
incidental  expenses  incurred  in  collecting  tolls  and  keeping  the  road  in  repair; 
and,  second,  to  the  payment  of  the  dividend  among  its  stockholders,  as  provided 
in  section  five  hundred  and  fourteen.  When  the  repayment  of  the  cost  of 
construction  is  completed,  the  tolls  must  be  so  reduced  as  to  raise  no  more 
than  an  amotmt  sufficient  to  pay  said  dividend,  and  incidental  expenses,  and  to 
keep  the  road  in  good  repair.  [Amendment,  approved  Marcli  30,  1874;  Amend- 
ments 1873-4,  215;  took  effect  July  1,  1874.'^' 

5522.  May  mortgage  and  hyjxjthecate  corporate  property . 

Sec  522.  The  corporation  may  mortgage  or  hypothecate  its  road  and  other 
property  for  funds  with  which  to  construct  or  repair  their  road,  but  no  mort- 
gage or  hypothecation  is  valid  or  binding  unless  at  least  twenty-five  per  cent, 
of  the  capital  stock  subscribed  has  been  paid  in  and  invested  in  the  consti-uc- 
tion  of  the  road  and  appurtenances,  and  then  only  after  an  affinnative  vote  of 
two  thirds  of  the  cajiital  stock  subscribed. 

(n)   Orifnnal  section-  more  than  an  amount  Fiifflricnt  to  pay  Incidental  ei- 

Sec.  521°.  The  entire  revenwe  derived  from  the  road  penees  and  to  keep  the  road  in  good  repair. 

Bhall  be  appropriated:  first,  to  repi.ymeiit  to  the  cor-  The  aniendiuent  in  the  text  was  i-yidently  drawn  In 

poration  the  costs  of  its  constxiietion,  with  tifteen^per  ccjiinction  with  and  refers  to  the  aniendnieut    u  the 

cent,  per  annum   interest  thereon,  together  with 'the  same  act  ol  secti.m  f.H.     That  *nuudu,.  nt  P'Mn«  to 

incidental  expenses  incurred  in  collecting  tolls  and  have  been  superseded  and  in  fact  never  to  h»>e  Uken 

keeping  the  road  in  repair.    When  the  rej  aynu'nt  is  effect.    See  note  to  section  514.  ante,  6514. 
completed,  the  tolls  must  be  so  reduced  as  to  raise  no 

42  ,  657 


5523-5530  CIVIL  CODE. 

5523.   This  title  applies  to  natural  persons  as  well  as  corporations. 

Sec.  523.  AVlien  a  wagon,  turnpike,  or  plank  road  is  constructed,  owned,  or 
operated  by  any  natural  iiersou,  this  title  is  applicable  to  such  person  in  like 
manner  as  it  is  api^licable  to  corporations. 


TITLE  YI. 

Bvibgc,  Jcvvn,  U)l)avf,  (tijutc,  anh  |picr  iHorporations. 

5528.  Corporation  to  obtain  license  from  supervisors. 

Sec.  528.  No  corporation  must  construct,  or  take  tolls  on,  a  bridge,  ferry, 
•svliarf,  chute,  or  pier  until  authority  is  granted  therefor  by  the  supervisors. 

5529.  In  what  contingencies  corporate  existence  ceases. 

Sec.  529.  Every  such  corporation  ceases  to  be  a  body  corporate: 

1.  If,  -within  six  months  from  filing  its  articles  of  incorjDoration,  it  has  not 
obtained  such  authority  from  the  board  of  supervisors;  and  if  ^Yithin  one  year 
thereafter,  it  has  not  commenced  the  construction  of  the  bridge,  wharf,  chute, 
or  pier,  and  actually  exi^ended  thereon  at  least  ten  per  cent,  of  the  capital  stock 
of  the  corporation; 

2.  If,  within  three  years  from  filing  the  articles  of  incorporation,  the  bridge, 
wharf,  chute,  or  pier  is  not  completed; 

3.  If,  when  the  bridge,  wharf,  chute,  or  pier  of  the  corporation  is  destroyed, 
it  is  not  reconstructed  and  ready  for  use  within  three  3'ears  thereafter; 

4.  If  the  ferry  of  any  such  corporation  is  not  in  running  order  within  three 
months  after  authority  is  obtained  to  establish  it,  or  if  at  any  time  thereafter  it 
ceases,  for  a  like  term  consecutively,  to  perform  the  duties  imposed  by  law. 

5530.  Fresident  and  secretary  to  make  annual  report,  and  what  to  contain. 

Sec  530.  The  president  and  secretary  of  every  bridge,  ferr^'',  wharf,  chute,  or 
pier  cori)oration,  must  annually,  under  oath,  report  to  the  board  of  supervisors 
of  the  county  in  which  the  articles  of  incorporation  are  filed: 

1.  The  cost  of  constructing  and  providing  all  necessary  appendages  and  ap- 
purtenances for  their  bridge,  ferry,  wharf,  chute,  or  pier; 

2.  The  amount  of  all  moneys  expended  thereon,  since  its  construction,  for 
repairs  and  incidental  expenses; 

3.  The  amount  of  their  capital  stock,  how  much  paid  in,  and  how  much 
actually  expended  thereof; 

4.  The  amount  received  during  the  year  for  tolls  and  from  all  other  sources, 
stating  each  separately; 

5.  The  amount  of  dividends  made,  and  the  indebtedness  of  the  corporation, 
specifying  for  what  it  was  incurred; 

6.  Such  other  facts  and  i:)articulars  respecting  the  business  of  the  corpora- 
tion as  the  board  of  supervisors  may  require. 

This  report  the  president  and  secretary  must  cause  to  be  published  for  four 
weeks  in  a  daily  newsjmper  published  nearest  the  bridge,  ferry,  wharf,  pier,  or 
chute,  if  required  by  order  of  the  board  of  supervisors.  A  failure  to  make  such 
report  subjects  the  corporation  to  a  penalty  of  two  hundred  dollars;  and  for 
every  week  permitted  to  elapse  after  such  failure,  an  additional  penalty  of 
fifty  dollars;  payable  in  each  case  to  the  county  from  which  the  authority  of 
the  corporation  was  derived.  All  such  cases  must  be  reported  by  the  board  of 
supervisors  to  the  distx'ict  attoruoy,  who  must  commence  an  action  therefor. 

€58 


TELEGRAPH  CORPORATIONS.  5531-5540 

5531.   This  title  to  apphj  to  natural  persons  alike  with  cnrpornlions. 

Sec.  531.  When  a  bridge,  ferry,  wharf,  chute,  or  pier  is  constructed,  operated, 
or  owned  by  a  natural  person,  this  title  is  applicable  to  such  person  in  like 
manner  as  it  is  applicable  to  corporations. 


TITLE   VII. 


5536.  May  use  right  of  way  along  icaters,  roads,  and  highivays. 

Sec.  536.  Telegraph  corporations  may  construct  lines  of  telegraj)!!  along 
and  upon  any  public  road  or  highway,  along  or  across  any  of  the  waters  or 
lands  within  this  state,  and  may  erect  poles,  posts,  piers,  or  abutments  for 
supporting  the  insulators,  wires,  and  other  necessary  fixtures  of  their  lines,  in 
such  manner  and  at  such  points  as  not  to  incommode, the  public  use  of  the 
road  or  highway,  or  interrupt  the  navigation  of  the  waters. 

[For  an  act  to  facilitate  telegraphic  communication  between  America  and 
Asia,  approved  February  13,  1874,  see  1873-4,  97.] 

5537.  Persons  liable  for  damages  for  injuring  telegraph  properly. 

Sec.  537.  Any  person  who  injures  or  destroys,  through  want  of  proper  care, 
any  necessary  or  useful  fixture  of  any  telegraph  corporation,  is  liable  to  the 
corporation  for  all  damages  sustained  thereb}'.  Any  vessel  whicli,  T)y  dragging 
its  anchor  or  otherwise,  breaks,  injures,  or  destroys  the  subaqueous  cable  of  a 
telegraph  corporation,  subjects  its  owner  to  the  damages  hereinbefore  specified. 

5538.  Party  guilty  of  willful  and  malicious  injury,  liable  to  one  hundred  limes 

actual  damages. 
Sec.  538.  Any  person  who  willfully  and  maliciously  does  any  injury  to  any 
telegraph  property  mentioned  in  the  preceding  section,  is  liable  to  the  corpora- 
tion for  one  hundred  times  the  amount  of  actual  damages  sustained  thereby, 
to  be  recovered  in  any  court  of  competent  jurisdiction. 

5539.  Conditions  on  ivhich  damage  to  subaqueous  cable  may  be  recovered. 

Sec.  539.  No  telegraph  corporation  can  recover  damages  for  the  breaking 
or  injury  of  any  subaqueous  telegraph  cable,  unless  such  corporation  has  pre- 
viously erected,  on  either  bank  of  the  waters  under  which  the  cable  is  placed, 
a  monument,  indicating  the  place  where  the  cable  lies,  and  publishes  for  one 
month  in  some  newspaper  most  likely  to  give  notice  to  navigators,  a  notice 
giving  a  description  and  the  purpose  of  the  monuments,  and  the  general  course, 
landings,  and  termini  of  the  cable. 

5540.  If  ay  dispose  of  certain  rights. 

Sec.  540.  Any  telegraph  corporation  may  at  any  time,  with  the  consent  of 
the  persons  holding  two  thirds  of  the  issued  stock  of  the  corporation,  sell, 
lease,  assign,  transfer,  or  convey  any  rights,  privileges,  franchises,  or  property 
of  the  corporation,  except  its  corporate  franchise. 

[Sec.  541<^'  was  repealed  by  act  approved  March  30,  1874;  Amendments 
1873-4,  216;  took  effect  July  1,  1874.  J 

(a)  Renealpfl  Kef  tion  •  which  must  be  uniform  throughout  the  state,  and  pub- 

SEc.lll    Every  Utoph  corporation  must  fix  uni-  lish  them  by  poBting  euch  rates  at  each  of  iheir  ollicc-« 

form  rates  of  charges  for  transmitting  messages  pro-  in  use. 
portionate  to  the  number  of  miles  the  same  are  sent, 

659 


5548-5552  CIVIL  CODE. 

TITLE  YIIL 

llMn  anb  (faiml  (forpotatiou^. 

5548.  Corporation  may  obtain  coiitract  to  svpphj  city  or  town. 

Sec.  548.  No  corporation  formed  to  siipply  any  city,  city  and  county,  or  town 
with  water  must  do  so  unless  previously  authorized'  by  an  ordinance  of  the 
authorities  thereof,  or  unless  it  is  done  in  conformity  with  a  contract  entered 
into  between  the  city,  city  and  county,  or  town  and  the  corporation.  Contracts 
so  made  are  valid  and  binding  in  law,  but  do  not  take  from  the  city,  city  and 
county,  or  town  the  right  to  regulate  the  rates  for  water,  nor  must  any  ex- 
clusive right  be  granted.  No  contract  or  grant  must  be  made  for  a  term 
exceeding  fifty  years. 

5549.  Duties  of  water  corporations. 

Sec.  549.  All  corporations  formed  to  supply  water  to  cities  or  towns  must 
furnish  pure  fresh  water  to  the  inhabitants  thereof,  for  family  uses,  so  long  as 
the  supply  permits,  at  reasonable  rates  and  without  distinction  of  persons, 
upon  proper  demand  therefor;  and  must  furnish  water  to  the  extent  of  their 
means,  in  case  of  lire  or  other  great  necessity,  free  of  charge.  The  rates  to  be 
charged  for  water  must  be  determined  by  commissioners,  to  be  selected  as  fol- 
lows: two  by  the  cit}'  and  county,  or  city  or  tow^n  authorities,  or  when  there 
are  no  city  or  town  authorities,  by  the  board  of  supervisors  of  the  county,  and 
two  by  the  water  company;  and  in  case  a  majority  cannot  agree  to  the  valua- 
tion, the  four  commissioners  must  choose  a  fifth  commissioner;  if  they  cannot 
agree  upon  a  fifth,  then  the  county  judge  of  the  county  must  appoint  such  fifth 
person.  The  decision  of  the  majority  of  the  commissioners  shall  determine  the 
rates  to  be  charged  for  water  for  one  year,  and  until  new  rates  are  established. 
The  board  of  supei-visoi's,  or  the  proper  city  or  town  authorities,  may  jsrescribe 
proper  rules  relating  to  the  delivery  of  water,  not  inconsistent  with  the  laws  of 
the  state.  [Amendment,  apjproved  March  30,  1874;  Amendments  1873-4,  21G; 
took  effect  July  1,  1874.'=^' 

5550.  Plight  to  use  streets,  ways,  alleys,  and  roads. 

Sec.  550.  Any  corporation  created  under  the  provisions  of  this  jiart,  for  the 
purposes  named  in  this  title,  subject  to  the  reasonable  direction  of  the  board  of 
supervisors,  or  city  or  town  authorities,  as  to  the  mode  and  manner  of  using 
such  right  of  way,  may  use  so  much  of  the  streets,  ways,  and  alleys  in  any 
town,  city,  or  city  and  county,  or  any  iniblic  road  therein,  as  may  be  necessary 
for  laying  pipes  for  conducting  water  into  any  such  town,  city,  or  city  and 
county,  or  through  or  into  any  part  thereof. 

5551.  To  build  and  keep  bridges  in  repair. 

Si:c.  551.  Every  Avater  or  canal  cori^oration  must  construct  and  keep  in  good 
repair,  at  all  times,  for  public  use,  across  their  canal,  flume,  or  water  pipe,  all 
of  the  Ijridges  that  tlie  board  of  supervisors  of  the  county  in  Avliich  such  canal 
is  situated  may  require,  the  bridges  being  on  the  lines  of  public  highways  and 
iiecoHsary  for  public  uses  in  connection  with  such  highways;  and  all  water- 
works must  be  so  laid  and  constructed  as  not  to  obstruct  public  highways. 

5552.  liigJd  to  water  to  irrigate  lands  sold  by  water  or  irrigating  company. 

Sec.  552.  Whenever  any  corporation,  organized  under  the  laws  of  this  state, 
fur;nshes  water  to  irrigate  lands  which  said  corporation  has  sold,  the  right  to 

(a)  The.  original  BPctlon  did  not  have  tlie  words  "or  of  sniiprvisorsof  thecouuty."  Ini.laceof  "  amnjurlty  " 
wUen  there  are  no  city  or  town  authoritieij  by  the  board     It  bad  "  they." 

660 


HOMESTEAD  CORPORATIONS.  5552-55G0 

the  flow  and  use  of  said  water  is  aud  sliall  reiiiaiu  a  perpcliial  eaKeiuent  to  the 
land  so  sold,  at  such  rates  and  terms  as  may  be  established  by  said  corporation 
in  pursuance  of  law.  And  whenever  any  person  wlio  is  cidtivutiii','  land  on  tlie 
line  and  within  the  flow  of  any  ditch  owned  by  such  corporation,  has  been 
furnished  water  by  it  with  which  to  irrigate  his  hand,  such  person  Hlinll  be 
entitled  to  the  coiitinued  use  of  said  water,  upon  the  same  terms  as  those  who 
have  purchased  their  land  of  the  corporation.  [N<;io  section,  approviid  April  3, 
1876;  Amendments  1^1  Z-(j,  11-^  took  c^'ect  from  passage. 


TITLE   IX. 

5557.  Time  of  corporate  existence. 

Sec.  557.  Corporations  organized  for  the  purpose  of  ac(|uiring  lands  in  lar;,'e 
tracts,  paying  off  incumbrances  thereon,  improving  aud  subdividing  them  into 
homestead  lots  or  parcels,  and  distributing  tliem  among  the  shareholders,  and 
for  the  accumulation  of  a  fund  for  such  purposes,  are  known  as  homestead  cor- 
porations, and  must  not  have  a  corjiorate  existence  for  a  longer  period  than 
ten  years. 

5558.  By-laws  to  specify  time  and  amount  of  payment  of  installments,  etc. 

Sec.  558.  Such  corporations  must  specify  in  their  by-laws  the  times  when  the 
installments  of  the  capital  stock  are  payable,  the  amount  thereof,  and  the  tines, 
penalties,  or  forfeitures  incurred  in  case  of  default.  A  printed  copy  of  the 
articles  of  incorporation  and  by-laws  must  be  furnished  to  any  shareholder  on 
demand. 

5559.  Advertisement  and  sale  of  delinquent  and  forfeited  shares. 

Sec,  559.  Whenever  any  shares  of  stock  are  declared  forfeited  by  resolution 
of  the  board  of  directors,  the  directors  may  advertise  the  same  for  sale,  giving 
the  name  of  the  subscriber  and  the  number  of  shares,  by  notice  of  not  less  than 
three  weeks,  j^ublished  at  least  once  a  week  in  a  newspaper  of  general  circula- 
tion in  the  city,  town,  or  county  w^here  the  jDrincipal  place  of  business  of  such 
corporation  is  located.  Such  sale  must  be  made  at  auction,  under  the  direction 
of  the  secretary  of  the  company.  The  corporation  may  be  a  bidder,  and  the 
shares  must  be  disposed  of  to  the  highest  bidder  for  cash.  No  defect,  inform- 
ality, or  irregularity  in  the  proceedings  respecting  the  sale  invalidates  it,  if 
notice  is  given  as  herein  provided.  After  the  sale  is  made  the  secretary  niust, 
on  receipt  of  the  purchase-money,  transfer  to  the  purchaser  the  shares  sold,  aud 
after  deducting  from  the  proceeds  of  such  sale  all  installments  then  due,  aud 
all  expenses  and  charges  of  sale,  must  hold  the  residue  subject  to  the  order  of 
the  delinquent  subscriber, 

5560.  May  borrow  and  loan  funds. 

Sec  5G0.  Homestead  corporations  may  borrow  money  for  the  purposes  of  the 
corporation,  not  exceeding  at  any  one  time  one  fourth  of  the  aggregate  amount 
of  the  shares  or  parts  of  shares  actually  paid  in,  and  the  income  thereof;  no 
greater  rate  of  interest  must  be  paid  therefor  than  twelve  per  cent,  per  annum. 
For  the  purpose  of  completing  the  purchase  of  lands  intended  to  be  divided 
aud  distributed,  they  may  borrow  on  the  security  of  their  shares  on  the  land 
thus  purchased,  or  that  owned  by  the  corporation  at  the  time  of  procuring  the 
loan,  any  sum  of  money  which,  together  with  the  interest  contracted  to  become 

661 


55GC-55G5  CB^IL  CODE. 

due  tliereoB,  will  not  oxceeil  ninety  per  cent,  of  the  unpaid  amount  subscribed 
by  the  shareholders;  but  no  loan  must  be  made  to  the  corporation  for  a  term 
extending?  beyond  that  of  its  existence. 

5561.  Minor  children,  xcards,  and  married  women  may  oxon  stock. 

Sec.  5G1.  Such  shares  of  stock  in  homestead  corporations  as  may  be  acquired 
by  children,  the  cost  of  which,  and  the  deposits  and  assessments  on  which  are 
paid  from  the  personal  earnings  of  the  children,  or  with  gifts  from  persons  other 
than  their  male  parents,  ma}'  be  taken  and  held  for  them  by  their  parents  or 
guardians.  Married  women  may  hold  such  shares  as  they  acquire  with  their 
personal  earnings,  or  those  of  their  children,  voluntarily  bestowed  therefor,  or 
from  property  bequeathed  or  given  to  them  by  persons  other  than  their  hus- 
bands. 

5562.  Forfeiture  for  specidaiing  in  or  oivning  lands  exceeding  tivo  hundred  thou- 

sand dollars. 
Sec.  5G2.  Homestead  corporations  must  not  jiurchase  and  sell,  or  otherwise 
acquire  and  dis2-)ose  of  real  property,  or  any  interest  therein,  or  any  personal 
property,  for  the  sole  purpose  of  speculation  or  profit.  Nor  must  any  such 
corijoration  at  any  one  time  own  or  hold,  in  trust  or  otherwise,  for  its  purposes, 
real  i^roperty,  or  any  interest  therein,  which  in  the  aggregate  exceeds  in  cash 
value  the  sum  of  two  hundred  thousand  dollars.  For  any  violation  of  the  jiro- 
visious  of  this  section,  corporations  forfeit  their  corporate  rights  and  powers. 
On  the  apiolication  of  any  citizen  to  a  court  of  competent  jurisdiction  such  for- 
feiture may  be  adjudged,  and  the  judgment  carries  with  it  costs  of  the  proceed- 
ings. 

5563.  II7i^/i  corporation  is  terminated,  and  how. 

Sec  5G3.  Except  for  the  purpose  of  winding  up  and  settling  its  affairs,  every 
homestead  corporation  must  terminate  at  the  expiration  of  the  time  fixed  for  its 
existence  in  the  articles  of  incorporation,  or  when  dissolved  as  j^rovided  in  this 
part.  No  dividend  of  funds  must  be  made  on  tei'mination  of  its  corporate  ex- 
istence until  its  debts  and  liabilities  are  paid;  and  upon  the  final  settlement  of 
the  affairs  of  the  corporation,  or  upon  the  termination  of  its  corporate  exist- 
ence, the  directors,  in  such  manner  as  they  may  determine,  must  divide  its 
property  among  its  shareholders  in  proportion  to  their  resiDective  interests,  or, 
upon  the  application  of  a  majority  in  interest  of  the  stockholders,  must  sell  and 
dispose  of  any  or  all  of  the  real  estate  of  the  corporation  upon  such  terms  as 
may  be  most  conducive  to  the  interests  of  all  the  stockholders,  and  must  convey 
the  same  to  the  purchaser,  and  distribute  the  proceeds  among  the  shareholders, 
or  may  at  any  time,  Avhen  best  for  the  interests  of  all  the  shareholders,  cause  the 
lands  of  the  corporation  to  be  subdivided  into  lots  and  distributed,  by  sale  for 
premiums,  at  auction  or  otherwise,  among  the  shareholders. 

5564.  Paymenl  of  premiums. 

Sec.  5G4.  Such  premiums  on  lots  may  be  made  payable  at  the  time  they  are 
bid  off,  and,  if  not  so  paid  on  any  lot  of  land,  the  directors  may  immediately 
offer  tlie  same  for  sale  again.  If  made  payable  at  a  future  day,  and  any  share- 
hf^lder  fails  to  pay  his  bid  on  the  day  the  same  is  made  due  and  payable,  the 
directors  may  advertise  and  sell  the  shares  of  stock  representing  the  lots  of 
land  on  which  the  jiremiums  remain  uni>aid,  in  the  manner  j^rovided  in  the  by- 
laws for  the  sale  of  shares  on  account  of  delinquent  installments  and  premiums. 
5585.  Annual  rqjort  to  he  ]mljlished. 

Sec.  565.  The  actual  financial  condition  of  all  homestead  corporations  must, 
by  the  directors  thereof,  be  i)ublished  annually  in  the  [a]  newspaper  pul)lished 
at  the  pnncipal  phue  of  business  of  the  corporation,  for  four  weeks,  if  i)ub- 
lishcd  in  a  wtel^ly,  and  two  weeks,  if  iiublished  in   a  daily.     The  statement 

GG2 


SAVINGS  AND  LOAN  CORPORATIONS.  5505-5572 

must  be  made  up  to  the  end  of  each  vear,  and  must  he  verilicd  liy  tlic  outli  uf 
the  president  and  secretary,  sliowing  the  items  of  property  and  liabilities. 
5566.  r uhllcation  in  cerUdn  cascf^. 

Sec.  5f)G.  In  any  case  in  which  a  publication  is  rc(iuii((l,  and  no  ncwspnt^er 
is  published  at  the  principal  place  of  business,  the  i)ublicali(jn  niay  be  made  iu 
a  paper  published  in  an  adjoining  county. 

An  Act  sniiplemciitary  to  an  act  entitled  An  Act  to  authorize  the  formution  (if  eorixirationK  to 
provide  the  numbers  thereof  with  homesteads,  or  lots  of  laud  suitaWe  for  hoiuehteuds,  up- 
proved  May  20,  18G1. 

Approveil  March  23,  1874  ;  1873-4,  625. 

Extension  of  time  for  homestead  eorporatlona. 

Section  1.  Any  corporation  formed  under  the  act  to  which  this  act  is  sup- 
plemental, whose  period  of  existence  is  not  stated  in  its  articles  of  incoriiora- 
tion  to  be  ten  years,  may  continue  its  corporate  existence  for  ten  years  from  the 
date  of  filing  its  articles  of  incorporation,  upon  complying  with  the  provisions 
of  this  act. 

Hoio  existence  continued. 

Sec.  2.  Any  such  corporation  existing  on  the  first  day  of  January,  eighteen 
hundred  and  seventy-four,  may,  at  any  time  before  its  period  of  existence,  as 
stated  in  its  articles  of  incorporation,  shall  expire,  continue  its  exi.stence,  as 
stated  in  section  one  of  this  act,  by  a  majority  vote  of  its  board  of  trustees  at 
any  meeting  of  such  board,  or  by  a  vote  of  a  majority  of  the  stockholders  as  the 
board  of  trustees  may  elect.  A  certificate  of  the  action  of  the  directors,  signed 
by  them  and  their  secretary,  when  the  election  is  made  by  their  vote,  or  upon 
the  written  consent  of  the  stockholders  or  members,  or  a  certificate  of  the  pro- 
ceedings of  the  meeting  of  tbe  stockholders  or  members,  when  such  election  is 
made  at  any  such  meeting,  signed  by  the  chairman  and  secretary  of  the  meet- 
ing and  a  majority  of  the  directors,  must  be  filed  in  the  ofiice  of  the  clerk  of  the 
count}^  where  the  original  articles  of  incorporation  are  filed,  and  a  certified 
copy  thereof  must  be  filed  in  the  office  of  the  secretaiy  of  state;  and  thereafter 
the  corporation  shall  continue  its  existence  under  the  provisions  of  this  act,  and 
shall  possess  all  the  rights  and  powers,  and  be  subject  to  all  the  obligations, 
restrictions,  and  limitations  prescribed  by  the  act  of  Avhich  this  is  supple- 
mentary. 

Sec.  3.  This  act  shall  take  effect  from  and  after  its  passage. 


TITLE   X. 

Saiimo0  mh  J?oau  (ToriJorationo. 

5571.  May  loan  money— On  lohat  terms,  hoiv,  and  to  ^chom,  and  hoic  long. 

Sec.  571.  Corporations  organized  for  the  purpose  of  accumulating  and  h^an- 
ing  the  funds  of  their  members,  stockholders,  and  depositors,  may  loan  and 
invest  the  funds  thereof,  receive  deposits  of  money,  loan,  invest,  tmd  collect 
the  same,  with  interest,  and  may  repay  depositors  with  or  without  interest. 
No  such  corporation  must  loan  money,  except  on  adequate  security  on  real  or 
personal  property,  and  such  loan  must  not  be  for  a  longer  penod  than  six 
years. 

5572.  Capital  stock,  and  rights  and  privileges  thereof. 

Sec  572  AYhen  savings  and  loan  corporations  have  a  capital  stock  specified 
in  their  articles  of  incorporation,  certificates  of  the  ownership  of  shares  may 
be  issued;  and  the  rights  and  privileges  to  be  accorded  to,  and  the  obligations 

663 


5572-5576  CIVIL  CODE. 

to  he  imiDOsed  npon,  such  capital  stock,  as  distinct  from  those  of  depositors, 
must  be  fixed  and  defined,  either  iu  the  articles  of  incorporation  or  in  the 
by-laws, 

5573.  No  dividend  except  from  surplus  jorqfits. 

Sec.  573.  The  directors  of  savings  and  loan  corporations  may,  at  such  times 
and  in  such  manner  as  the  by-laws  prescribe,  declare  and  pay  dividends  of  so 
much  of  the  profits  of  the  corporation,  and  of  the  interest  arising  from  the 
capital  stock  and  deposits,  as  may  be  appropriated  for  that  purpose  under  the 
by-laws  or  under  their  agreements  with  depositors.  The  directors  must  not 
contract  any  debt  or  liability  against  the  corporation  for  any  purpose  whatever, 
excejit  for  dei^osits.  The  capital  stock  and  the  assets  of  the  corporation  are  a 
security  to  depositors  and  stockholders,  depositors  having  the  priority  of  secu- 
rity over  the  stockholders,  but  the  by-laws  may  provide  that  the  same  security 
shall  extend  to  deposits  made  by  stockholders. 

5574.  Property  which  may  be  oioned,  and  how  di^^posed  of. 

Sec.  574.  Savings  and  loan  corporations  may  purchase,  hold  and  convey  real 
and  personal  proj^erty,  as  follows: 

1.  The  lot  and  building  in  which  the  business  of  the  corporation  is  carried 
on,  the  cost  of  which  must  not  exceed  one  hundred  thousand  dollars;  except, 
on  a  vote  of  two  thirds  of  the  stockholders,  the  corporation  may  increase  the 
sum  to  an  amount  not  exceeding  two  hundred  and  fifty  thousand  dollars; 

2.  Such  as  may  have  been  mortgaged,  jDledged,  or  conveyed  to  it  in  trust, 
for  its  benefit  in  good  faith,  for  money  loaned  in  pursuance  of  the  regular  busi- 
ness of  the  coi-jDoration; 

3.  Such  as  may  have  been  purchased  at  siiles  under  pledges,  mortgages,  or 
deeds  of  trust  made  for  its  benefit,  for  money  so  loaned,  and  such  as  may  be 
conveyed  to  it  by  borrow^ers  in  satisfaction  and  discharge  of  loans  made 
thereon; 

4.  Xo  such  corporation  must  purchase,  hold,  or  convey  real  estate  in  any 
other  case  or  for  any  other  purpose;  and  all  real  estate  described  in  subdivision 
three  of  this  section,  must  be  sold  by  the  corporation  within  five  years  after  the 
title  thereto  is  vested  in  it  by  purchase  or  otherwise; 

5.  No  cori^oration  must  purchase,  own  or  sell  personal  j)roperty,  excej^t  such 
as  may  be  requisite  for  its  immediate  accommodation  for  the  convenient  trans- 
action of  its  business,  mortgages  on  real  estate,  bonds,  securities  or  evidences 
of  indebtedness,  public  or  private,  gold  and  silver  bullion  and  United  States 
mint  certificates  of  ascertained  value,  and  evidences  of  debt  issued  by  the  United 
States; 

G.  No  corporation  must  purchase,  hold  or  convey  bonds,  securities  or  evi- 
dences of  indebtedness,  j)ublic  or  private,  except  bonds  of  the  United  States,  of 
the  State  of  California,  and  of  the  counties,  cities,  or  cities  and  counties,  or  towns 
of  the  State  of  California,  unless  such  corporation  has  a  caj)ital  stock  or  reserved 
fund  paid  in,  of  not  less  than  $300,000.  [Amendment,  appjroved  March  18, 1874; 
Amendments  1873-4,  273;  took  effect  from  passage  ^^ 

5575.  Married  women  and  minors  may  own  stock  in  their  own  right. 

Sec  575.  Married  women  and  minors  may,  in  their  own  right,  make  and 
draAv  deposits  and  draw  dividends,  and  give  valid  receipts  therefor. 

5576.  3Iay  issue  transferahle  certificates  of  deposit. 

Sec  576.  Savings  and  loan  corporations  may  issue  general  certificates  of  de- 
posit, which  are  transferable,  as  in  other  cases,  by  indorsement  and  delivery; 

(a)  The  original  Bection  did  not  have  the  last  clauae     division  after  "  fund  "  it  had  the  words  "  or  both  capl- 
of  the  third  subdivision,  commencing  witli  tlio  words     tul  stock  uud  reserved  fund." 
"  and  Bucli  as  may  be  conveyed  to  it."    lu  the  lust  sub- 

604 


SAVINGS  AND  LOAN  CORPORATIONS.  557G-5579 

may  issue,  wlieii  requested  by  the  depositor,  special  certificates,  ackuowledging 
the  deposit  by  the  person  therein  named  of  a  specified  sum  of  money,  and  ex- 
pressly providing  on  the  face  of  such  certificate  that  the  sum  so  depoKited  and 
therein  named  may  be  transferred  only  on  the  books  of  the  corporation;  pay- 
ment thereafter  made  by  the  corporation  to  the  depositor  named  in  such  certifi- 
cate, or  to  his  assignee  named  upon  the  books  of  the  corporation,  or,  in  case  of 
death,  to  the  legal  representative  of  such  person,  of  the  sum  for  which  such 
siDCcial  certificate  was  issued,  discharges  the  corporation  from  all  further  liability 
on  account  of  the  money  so  paid. 

5577.  To  jjrovide  reserve  fund  for  the  payment  of  losses. 

Sec.  577.  Savings  and  loan  corporations  may  jn-escribe  by  their  by-laws  the 
time  and  conditions  on  which  repayment  is  to  be  made  to  depositors;  but  when- 
ever there  is  any  call  by  depositors  for  repayment  of  a  greater  amount  than  the 
corporation  may  have  disposable  for  that  purpose,  the  directors  or  officers  thereof 
must  not  make  any  new  loans  or  investments  of  the  funds  of  the  depositors,  or 
of  the  earnings  thereof,  until  such  excess  of  call  has  ceased.  The  directors  of 
any  such  corporation  having  no  cajntal  stock  must  retain,  on  each  dividend  day, 
at  least  five  per  cent,  of  the  net  profits  of  the  corporation,  to  constitute  a  reserv'e 
fund,  which  must  be  invested  in  the  same  manner  as  other  funds  of  the  corpor- 
ation, and  must  be  used  towards  paying  any  losses  which  the  corporation  may 
sustain  in  pursuing  its  lawful  business.  The  corporation  may  provide  by  its  by- 
laws for  the  disposal  of  any  excess  in  the  reserve  fund  over  one  hundred  thou- 
sand dollars,  and  the  final  disposal,  upon  the  dissolution  of  the  corporation,  of 
the  reserve  fund,  or  of  the  remainder  thereof,  after  payment  of  losses. 

5578.  Prohibition  on  director  and  officer,  and  tvliat  vacates  office. 

Sec.  578.  No  director  or  officer  of  any  savings  and  loan  corporation  must, 
directly  or  indirectly,  for  himself  or  as  the  jiartner  or  agent  of  others,  T)orrow 
any  of  the  deposits  or  other  funds  of  such  corj^oi-ation,  nor  must  he  become  an 
indorser  or  sui^ety  for  loans  to  others,  nor  in  any  manner  be  an  obligor  for  moneys 
borrowed  of  or  loaned  by  such  corporation.  The  office  of  any  director  or  officer 
who  acts  in  contravention  of  the  provisions  of  this  section  immediately  there- 
upon becomes  vacant. 

5579.  Definition  of  ph^-ase  ''create  debts." 

Sec.  579.  Receiving  deposits,  issuing  certificates  of  deposit,  checks,  and  bills 
of  exchange  and  the  like,  in  the  transaction  of  the  business  of  savings  and  loan 
corporations,  must  not  be  construed  to  be  the  creation  of  debts  within  the  mean- 
ing of  the  phrase  "  create  debts,"  in  section  309. 

An  Act  to  authorize  the  husband  or  wife  or  next  of  kin  of  a  cleceasetl  person  to  collect  and 

receive  of  any  savings  bank  any  deposit  in  such  b^nk,  when  the  same  does  not  exceed  the  sum 

of  three  hl^ndred  dollars. 

Approved  February  18,  18T4;  1873-4,  132. 

Collect  deposit. 

Section  1.  The  surviving  husband  or  wife  of  any  deceased  person,  or  if  no 
husband  or  wife  be  living,  then  the  next  of  kin  of  such  decedent  may,  without 
procuring  letters  of  administration,  collect  of  any  savings  bank  any  sum  which 
said  deceased  may  have  left  on  a  deposit  in  such  bank  at  the  time  of  his  or  her 
death;  provided,  said  deposit  shall  not  exceed  the  sum  of  thi'ee  hundred  dollai-s. 

Affidavit. 

Sec.  2.  Any  savings  bank,  upon  receiving  an  affidavit  stating  that  said  depos- 
itor is  dead,  and  that  affiant  is  the  surviving  husband  or  wife,  as  the  case  may 
be,  or  stating  that  decedent  left  no  husband  or  wife,  and  that  affiant  is  the  next 
of  kin  of  said  decedent  and  entitled  to  distribution,  and  that  the  whole  amount 
that  decedent  left  on  deposit  in  any  and  all  savings  banks  or  bank  of  deposit 

665 


5579-5587  CIVIL  CODE, 

in  this  state  does  not  exceed  the  sum  of  three  hundred  dollars,  niay  imy  to  said 
aflSant  any  deposit  of  said  decedent,  if  the  same  does  not  exceed  the  sum  of 
three  hundred  dollars,  and  the  receipt  of  such  affiant  shall  be  a  sufficient 
acquittance  therefor. 

Guilly. 

Sec.  3.  Any  person  who  shall  make  a  false  affidavit  in  regard  to  the  matters 
specified  in  this  act,  shall  he  deemed  guilty  of  perjury. 

Sec  4.  This  act  shall  take  efi'ect  from  and  after  its  passage. 


TITLE  XI. 


5. 

5584.  [Sec  584'"^  Avas  repealed  by  act  of  April  3,  187G;  Amendments  1875-6, 
73;  took  effect  immediately.] 

[The  object  of  the  section,  -svhich  was  to  change  the  principal  place  of  busi- 
ness of  a  mining  corporation,  is  accomi^lished  by  an  act  to  the  same  effect 
applicable  to  all  corporations.     See  ante,  5321.] 

5585.  Directors  to  file  certificates  of  proceedings  in  offices  of  county  clerics  and 

secretary  of  state. 

Sec  585.  When  the  publication  provided  for  in  the  preceding  section  has 
been  completed,  the  directors  of  the  corporation  must  file  in  the  offices  of  the 
clerks  of  the  counties  from  and  to  which  such  change  has  been  made,  and  in 
the  office  of  the  secretary  of  state,  certified  cop)ies  of  the  written  consent  of  the 
stockholders  to  such  change,  and  of  the  notice  of  such  change,  and  proof  of 
publication;  also  a  certificate  that  the  proposed  removal  has  taken  place;  and 
thereafter  the  pi-incipal  place  of  business  of  the  cor^^oration  is  at  the  place  to 
which  it  is  removed. 

5586.  Transfer  agencies. 

Sec  58G.  Any  corporation  organized  in  this  state  for  the  purpose  of  mining 
or  canying  on  mining  operations  in  or  without  this  state,  may  establish  and 
maintain  agencies  in  other  states  of  the  United  States,  for  the  transfer  and  issu- 
ing of  their  stock;  and  a  transfer  or  issue  of  the  same  at  any  such  transfer 
agency,  in  accordance  with  the  provisions  of  its  by-laws,  is  valid  and  binding 
as  fully  and  effectually  for  all  purposes  as  if  made  upon  the  books  of  such 
corporation  at  its  principal  office  within  this  state.  The  agencies  must  be  gov- 
erned by  the  by-laws  and  the  directors  of  the  corporation. 

5587.  Stock  issued  at  transfer  agencies. 

Sec.  587.  All  stock  of  any  such  corporation,  issued  at  a  transfer  agency, 
must  be  signed  by  the  president  and  secretary  of  the  corporation,  and  counter- 
signed at  the  time  of  its  issue  by  the  agent  having  charge  of  the  transfer  agency. 
No  stock  must  be  issiusd  at  a  transfer  agency  unless  the  certificate  of  stock,  in 
lieu  of  wliicli  tlie  same  is  issued,  is  at  tlie  time  surrendered  for  cancellation. 

(a)  lU'pealorl  Bectlon:  is  obtained,  notice  of  the  intended  removal  iiiust  be 
Sec.  ftH4.  Kv.ry  mining  rorporntion  may  clianno  its  puMislK-d  for  thirty  dnys  in  s<>7ne  newBpiipirpublii-hta 
priii.ipal  i)l:i<-.'  of  buhinc-hH  from  on<-  county  or  <ity  to  at  the  principiil  pliice  of  business  of  tlic  corporation, 
Buothr-r,  within  thin  htaic  Jiefore  sucli  nmoval  is  givini,'  tlie  nanu;  of  the  coui.tv  or  citv  whi  re  It  is 
mad<-  the  consent  in  writing  of  th<-  holders  of  two  then  situated,  and  that  to  which  it  is  intended  to  re- 
thirds  of  the  cajiital  stock  ni\ist  be  obtained  and  filed  move  it. 
in  the  oillce  of  the  corporation.    When  such  consent 

GGG 


MINING  CORrOllATIONS.  n5S7 

An  Act  supplemental  to  an  act  entitled  An  Act  eoncoriiiiif;  corpunitions,  passi-d  twinty-secoud 
April,  one  tliuusand  eight  hundred  and  lifty. 

Approved  March  21,  1872;  1871-2,  Hi. 

Petition  for  removal  of  officers. 

Section  1.  On  petition  of  the  majority  of  the  shareholders  of  any  corijoration 
fo^^-med  for  the  i:>urpose  of  mininjo;'  to  the  county  jud'^e  of  the  county  where  Knitl 
corporation  has  its  in-iiu'i])al  phice  of  husiuess,  verified  by  the  si;,'mrs,  to  Iho 
effect  that  tliey  are  severally  the  holders  on  the  hooks  of  the  company  of  the 
number  of  shares  set  opposite  their  signatures  to  the  foregoing  petition,  tho 
county  judge  shall  issue  his  notice  to  the  shareholders  of  said  company  that  a 
meeting  of  the  shareholders  will  be  hold,  stating  the  time,  not  less  than  five 
nor  more  than  ten  days  after  the  first  pul)lication  of  such  notice,  and  the  phico 
of  meeting  within  said  county,  and  the  object  to  be  to  take  into  consideration 
the  removal  of  officers  of  said  company;  which  notice,  signed  by  the  said  county 
judge,  shall  be  published  daily  in  one  or  more  daily  newspapers  i^ublished  in 
said  county  for  at  least  five  days  before  the  time  for  the  meeting. 
Organization  of  meeting. 

Sec.  2.  At  the  time  and  place  appointed  by  said  notice,  those  claiming  to  be 
shareholders  who  shall  assemble,  shall  proceed  to  organize  by  the  appointment 
of  a  chairman  and  secretary,  and  thereupon  those  claiming  to  be  shareholders 
shall  present  proof  thereof,  and  only  those  showing  a  right  to  vote  shall  take 
part  in  the  further  proceedings.  If  it  appears  that  at  the  time  appointed,  or 
within  one  hour  thereafter,  shareholders  of  less  than  one  half  the  shares  are 
present,  no  further  proceedings  shall  be  had;  but  the  meeting  shall  be  ipso  facto 
dissolved;  provided,  however,  that  by  a  vote  of  the  holders  of  the  majority  of 
the  capital  stock  of  the  corporations  aforesaid,  the  board  of  trustees  may  be 
required  to  furnish  to  the  meeting  a  written  detailed  statement  and  account  of 
the  affairs,  business  and  property  of  the  corporation;  but  if  the  holders  of  a 
majority  of  the  shares  are  present  they  shall  proceed  to  vote,  the  secretary 
calling  the  roll,  and  the  members  voting  yea  or  no,  as  the  case  may  be.  The 
secretary  shall  enter  the  same  upon  his  list,  and  when  he  has  added  up  the  list 
and  stated  the  result,  he  shall  sign  the  same  and  hand  it  to  the  chairman,  who 
shall  sign  the  same  and  declare  the  result.  [Amendment,  approved  April  1, 
1876;  1875-6,730;  took  effect  from  pasmge.^"' 

Ballot  to  supply  vacancies. 

Sec.  3.  If  the  result  of  the  vote  is  that  the  holders  of  a  majority  of  all  the 
shares  of  the  company  are  in  favor  of  the  removal  of  one  or  more  of  the  officers 
of  the  company,  the  meeting  shall  then  proceed  to  ballot  for  ofiicers  to  sui)i)ly 
the  vacancies  thus  created.  Tellers  shall  be  appointed  by  the  chairman,  who 
shall  collect  the  ballots  and  deliver  them  to  the  secretary,  who  shall  count  the 
same  in  open  session,  and  having  stated  the  result  of  the  count  in  writing,  shall 
sign  the  same  and  hand  it  to  the  chairman,  wlio  shall  announce  the  result  to  tho 
meeting. 

Certificate  of  election. 

■  Sec.  4.  A  report  of  the  proceedings  of  the  meeting  shall  be  made  in  writing, 
signed  by  the  chairman  and  secretary  and  verified  by  them,  and  delivered  to  the 
county  judge,  who  shall  thereupon  issue  to  each  person  chosen  a  certificate  of 
his  election,  and  shall  also  issue  an  order  requiring  that  all  books,  i^apers,  nnd 
all  property  and  effects  be  immediately  delivered  to  the  officers  elect;  and.  tho 
petition  and  report,  indorsed  with  the  date  and  fact  of  the  issuance  of  su.-li  cer- 
tificate and  order,  shall  be  delivered  to  the  county  clerk,  to  be  by  him  filed  in 

(a)  The  original  section,  inRtead  of  "  the  majority,"  had  the  ^vord8  "  two  thirds."  and  instead  of  "  a  majority  " 
the  words  ' '  more  than  two  thirds." 

667 


5587  CIVIL  CODE. 

his  office,  aud  thereafter  the  persons  thus  elected  officers  shall  be  the  duly 
elected  officers  aud  hold  office  until  the  next  regular  aunual  meeting,  unless 
removed  under  the  provisions  hereof. 

Fees  of  county  clerk. 

Sec.  5.  For  all  services  in  these  proceedings  the  county  clerk  shall  receive 
ten  dollars  on  the  issuance  of  the  notice  and  ten  dollars  on  the  issuance  of  the 
certificates. 

Sec.  G.  All  acts  or  paiis  of  acts  conflicting  with  this  act  are  hereby  repealed. 

Sec.  7.  This  act  sLall  take  effect  immediately. 

Au  Act  for  the  bettor  protection  of  tlie  Htockholders  in  corporations  formed  under  the  laws  of 
the  State  of  Culifurnia,  for  the  pnrijose  of  carrying  on  aud  conducting  the  business  of  mining. 

Approved  March  30,  1874;  1873-4.  8G6. 

Books  of  mining  corporal ioiis. 

Section  1.  It  shall  be  the  duty  of  the  secretary  of  every  corporation  fonned 
under  the  laws  of  the  State  of  California,  for  the  purpose  of  mining,  to  keep  the 
books  of  such  corporation,  as  prescribed  by  its  by-laws,  provided  such  by-laws 
are  not  inconsistent  with  the  laws  of  this  state.  The  books  of  such  corporation 
shall  be  produced  for  examination  and  inspection  during  the  hours  of  business, 
every  day  in  the  year,  Sundays  and  legal  holidaj^s  excej^ted,  upon  the  demand 
of  any  stockholder,  holding  and  presenting  a  certificate  of  stock  in  such  corpo- 
ration, either  in  his  own  name  and  properly  indorsed;  and  the  secretaiy  of  such 
corj^oration  shall  be  reciuired  upon  the  demand  of  any  stockholder  holding 
stock  in  such  corporation,  to  the  amount  of  five  hundred  dollars,  par  value,  to 
have  the  books  of  the  coi-poration  written  up  at  tlie  end  of  each  month,  and 
shall  make  out  a  balance  sheet  showing  the  correct  financial  condition  of  the 
corporation,  and  on  or  before  the  tenth  day. of  January  and  July  of  each  year, 
he  shall  make  out  a  written  statement,  showing  all  the  business  and  financial 
transactions  of  the  corporation  for  the  six  months  preceding,  which  statement 
shall  also  contain  a  full  description  of  all  joropert}^  of  the  corporation,  and  the 
character  and  extent  of  the  same,  and  such  statements,  together  with  all  jmpers 
and  records  of  the  corporation,  shall  be  oj^en  to  examination  and  inspection 
upon  any  demand  by  such  stockholder.  All  demands  of  stockholders,  as  speci- 
fied in  this  section,  shall  be  made  to  the  secretary,  at  the  office  of  the  corpora- 
tion, where  its  princii^al  place  of  business  is  located. 

Examination  of  mines. 

Sec.  2.  Any  owner  of  stock,  of  the  par  value  of  $500,  in  anj'  of  the  corpora- 
tions mentioned  in  section  one  of  this  act,  shall  at  all  hours  of  business  or  labor 
on  or  about  the  premises  or  property  of  such  corporation,  have  the  right  to  enter 
ui>ou  such  property  and  examine  the  same,  either  on  the  surface  or  under 
ground.  And  it  is  hereby  made  the  duty  of  any  and  all  officers,  managers, 
agents,  superintendents,  or  persons  in  charge,  to  allow  any  such  stockholder 
to  enter  upon  and  examine  any  of  the  projierty  of  such  corporation,  at  any  time 
during  the  hours  of  business  or  labor.  And  the  presentations  of  certificates  of 
stock  in  the  corijoratiou  of  the  jmr  value  of  five  hundred  dollars,  to  the  officer 
or  jierson  in  charge,  shall  be  prima  facie  evidence  of  ownershii)  and  right  to 
enter  upon  or  into,  and  make  examination  of  the  property  of  the  corporation. 

Fejialfy. 

Sec.  3.  The  violations  of  any  of  the  provisions  of  sections  one  and  two  of  this 
act,  shall  subject  the  trustees  of  the  corporation  to  a  fine  of  two  hundred  dol- 
lars and  costs  of  suit,  aud  the  expenses  of  the  stockholders  so  refused,  in  trav- 
eling to  and  from  the  projierty,  which  may  be  recovered  in  any  court  of  compe- 
tent jurisdiction,  either  in  the  county  wliere  the  property  is  situated,  or  in  the 

'  GC8 


SOCIAL  AND  BENEVOLENT  CORPORATIONS.     5587-o;-;98 

county  where  the  office  and  principal  place  of  hiisiness  of  tlie  cori)onitiou  is 
situated,  which  said  tine  shall  be  imposed  and  collected  for,  iiud  piii<l  (;ver  to 
the  person  so  refused,  together  with  all  nuaieys  collected  for  the  said  tmveliug 
expenses. 

Sec.  4.  All  acts  in  conflict  with  the  provisions  of  this  act  are  hereby  repealed. 


TITLE   XII. 

Ucligiaus,  Social  mib  Bcucuolcut  ^^seiodatious. 

5593.  Corporations  for  pxirposes  other  than  profit,  howfornvd. 

Sec.  593,  Any  number  of  persons  associated  together  for  religious,  social, 
benevolent,  or  other  purpose  included  in  the  subdivisions  of  section  280,  where 
pecuniary  profit  is  not  their  object,  may,  in  accordance  with  the  i-ules,  regula- 
tions, or  discipline  of  such  association,  elect  directors,  the  number  thereof  to 
be  not  less  than  three  nor  more  than  eleven,  and  may  incorijorate  themselves  as 
provided  in  this  part. 

5594.  Additional  facts  articles  of  ivcorpioration  to  set  out. 

Sec.  594.  In  addition  to  the  requirements  of  section  290,  the  articles  of  incor- 
poration of  any  association  mentioned  in  the  preceding  section  must  set  forth 
the  holding  of  the  election  for  directors,  the  time  and  jjlace  where  the  same  was 
held,  that  a  majority  of  the  members  of  such  association  were  present  and  voted 
at  such  election,  and  the  result  thereof;  which  facts  must  be  verified  by  the 
officers  conducting  the  election. 

5595.  Corporation  to  hold  property,  and  amount  of  real  estate  limiti'd. 

Sec.  595.  All  such  corporations  may  hold  all  the  property  of  the  association 
owned  prior  to  incorporation  or  acquired  thereafter  in  any  manner,  and  transact 
all  business  relative  thereto;  but  no  such  corporation  must  own  or  hold  more 
real  estate  than  may  be  necessary  for  the  business  and  objects  of  the  association 
and  providing  burial  grounds  for  its  deceased  members,  not  to  exceed  six  whole 
lots  in  any  city  or  town  nor  more  than  twenty  acres  in  the  country,  the  annual 
increase  or  income  whereof  must  not  exceed  fifty  thousand  dollars. 

5596.  How  much  land  masons,  oddfellows,  and  pioneers  may  hold. 

Sec.  596.  In  addition  to  that  provided  for  in  the  preceding  section,  masons, 

§596.  Add  after  "Odd  FpH.    r/. "'^''  o-npiniions  may  hold  such  real  estate  as 

Templars."     [Jn  effect,  March  26^878.]  '""""'^   ^'"'''   "  ^^°^  ''1'''^^^'  ''''  ^''''  ^^'^  ^^^^^>^^^^- 

nnected  therewith.     In  case 

any  SUCH  cuij^^^. ,    „  mrchase,  of  more  lands  than 

herein  or  in  the  preceding  section  provided  for,  such  surplus  must  be  sold  and 
conveyed  by  the  corporation  within  five  years  after  its  acquisition.  Such  sale 
may  be  made  without  the  order  or  decree  of  the  district  court,  as  hereinafter 
provided. 

5597.  Directors  to  make  verified  report  annually. 

Sec.  597.  The  directors  must  annually  make  a  full  report  of  all  property,  real 
and  personal,  held  in  trust  for  their  corporation  by  them,  and  of  the  condition 
thereof,  to  the  members  of  the  association  for  which  they  are  acting. 

5598.  Corporations,  by  order  of  district  court,  may  mortyaye  or  sell  real  estate. 
Sec.  598.  Corporations  of  the  character  mentioned  in  section  five  hundred 

and  ninety-three,  may  mortgage  or  sell  real  property  held  by  them,  upon  ob- 

669 


5598-5G01  CITIL  CODE. 

taining  an  order  for  that  purpose  from  the  district  court  hekl  in  the  county  in 
which  the  property  is  situated.  Before  making  the  order,  proof  must  be  made 
to  the  satisfaction  of  the  court  that  notice  of  the  application  for  leave  to  mort- 
gage or  sell  has  been  given  by  publication  in  such  manner  and  for  such  time  as 
the  court  or  judge  has  directed,  and  that  it  is  for  the  interest  of  the  corporation 
that  leave  should  be  granted  as  prayed  for.  The  application  must  be  made  by 
petition,  and  auy  member  of  the  corporation  may  oppose  the  granting  of  the 
order  by  affidavit  or  otherwise.  {Ameiidmerd,  approved  March  30, 1874;  Amend- 
ments 1873-4,  216;  took  effect  July  1,  1874.^"> 

5599.  Wliat  may  be  provided  for  in  their  hy-knes,  etc. 

Sec.  599.  Corporations  organized  for  inxrjioses  other  than  for  profit  may  in 
their  by-laws,  ordinances,  constitutions,  or  articles  of  incorporation,  in  addition 
to  the  provisions  in  Title  I  of  this  Part,  provide  for: 

1.  The  qualitications  of  members,  mode  of  election,  and  terms  of  admission 
to  membership; 

2.  The  fees  of  admission  and  dues  to  be  paid  to  their  treasury  by  members; 

3.  Tiie  expulsion  and  suspension  of  members  for  misconduct  or  non-payment 
of  dues;  also,  for  restoration  to  membertship; 

4.  Contracting,  securing,  paying,  and  limiting  the  amount  of  their  indebt- 
edness; 

5.  Other  regulations,  not  repugnant  to  the  constitution  or  laws  of  the  state 
and  consonant  with  the  objects  of  the  corporation, 

5600.  Members  admitted  after  incorporation. 

Sec.  goo.  Members  admitted  after  incorporation  have  all  the  rights  and  priv- 
ileges, and  are  subject  to  tbe  same  responsibilities,  as  members  of  the  association 
prior  thereto. 

5601.  No  member  to  transfer  membership ,  etc. 

Sec.  GOl.  No  member,  or  his  legal  representative,  must  disjDose  of  or  transfer 
any  right  or  privilege  conferred  on  him  by  reason  of  his  membership  of  such 
corporation,  or  be  deprived  thereof,  except  as  herein  provided. 

An  Act  relating  to  mutual  beneficial  and  relief  associations. 

Approved  Mwch  28,  1871;  1873-4,  745. 

Mutual  beneficial  and  relief  associations. 

Section  1.  Associations  may  be  formed  for  the  purpose  of  paying  to  the 
nominee  of  any  member,  a  sum  upon  the  death  of  said  member,  not  exceeding 
thi'ee  dollars  for  each  member  of  such  association.     No  such  association  shall 
exceed  in  number  one  thousand  persons. 
How  formed. 

Sec  2.   Such  association  shall  be  formed  by  filing  a  verified  certificate  in  the 

la)  Original  sectioii:  In  the  real  estnto;  4.  At  any  time  before  the  day  set  for 

Sec.  .Vj..  CorpoiationRorgnnized  by  members  of  ae-  hearing  the  petition  any  person  IntereKtediu  the  prop- 

Bociuti  ns  tuentioued  in  S' etiun  .'lOrj  may  mortgai,'e  or  erty  may  present  objeetii ins  or  answer  to  tlie  petition, 

Bell  the  uecessary  real  estate  lield  by  them,  on  lomply-  raising  "either  question  of  law  or  fact,  and  the  same 

lug  with  the  following  provisions:   1.  The   directors  must  bft  tried  by  the  court  as  other  cases  are  tried;  5. 

must,  by  resolution,  declare  such  disnohition  of  the  If  on  the  iiearlng  at  the  trial  it  is  found  by  the  court 

real  ebt  .ti?  necessary,  or  for  the  best  intensts  of  the  that  the  morl gage  or  sale  of  the  property  is  unueces- 

corpor.itii.n.    in    the   prosecution  of  the   purposes  of  sary,  or  that  the  best  interests  of  the  corporation  will 

the   HBKorii.tion.  setting  li.rtli   the   grounds   tlierefor;  not  be  subserved  or  advanced  tliereby,  the  order  and 

2.   The   directors    must    petition    the   distric  t    court  decree  must  be  denied;  if  it  is  found   necessary,  or 

«>f  th'--   c(juiity   in  wliich  the  real   eslate  is  situated,  that  the  best  Interests  of  tlie  corporation  will  be  sub- 

fi>r  the  ni'.rtgage or  sale  thereof,  setting  forth  the  reso-  served  or   advanced   thereby,    the   petition   must   be 

lutiiiu  upiin  wliich  the  petition  is  based;  3.  The  judge  granted;  C.  Tlie  court   may,  if  considered  necessary, 

of  the  cimrt.  if  it  ajipear  tljat  it  is  a  case  in  which  such  direct  an  appraisement  of  the  property  to  be  first  made, 

order  should  be  made,  must  ilircct  publication  of  sum-  and  appi.int  disinterested  appraisers  therefor,  fix  their 

TiioURtonll  perilous  interested   in  the  pr-perty  to  ap-  compensation  and  the  time  for  them  to  report;  and 

pear  before  i he  i-ourt  and  show  cause  why  such  order  direct  the  mak.ng  and  exe  uti<in  of  the  mortgage  or 

or  decree  should  n<it  bi;  madi-.     The  notice  must  be  deed  and  all  necessary  accompanying  notes,  bonds,  or 

published  in  a  newspaper  I'ublislicd  in   the  city  or  contracts,  and  to  what  purpose  the  proceeds  must  be 

county  wliire  the  I'njperty  is  situated,  for  such  time  applied  by  the  corporation  as  best  comiJorts  with  its 

as  the  ju'lgc  may  rlir'ct;  in  pboc  of  tlic  imblication,  objects. 
IHsrhoual  notice  may  be  served  on  all  persons  interested 

670 


CEMETERY  CORPORATIONS. 


Cf;01-5C09 


office  of  the  clerk  of  the  county  in  Avhich  the  principal  place  of  busincsH  shall  be 
situated,  and  filing  a  like  certificate  in  the  ofiice  of  the  Hecretary  of  the  state; 
such  certificate  shall  state  the  general  objects  of  the  association,  its  principal 
place  of  business,  and  the  names  of  the  officers  selected  to  hold  office  for  the 
■*-  thrift  months,  and  shall  be  signed  by  said  officers,  and  verified  by  at  least 


member,  may  levy  an  assess- 

)  death,  not  exceeding  three 

[pay  the  same  to  the  nominee 

ent  of  such  annual  payments 

provisions  of  thisXrex;;^' q"  1^  f'^r^-'^'^'^^i'^^-'i  ual  assessment  upon  an v  one 

'        '^  ^'^'^'  1878.  5sment  established  at  the  time 

such  member  jomeci  sucii  ^^ 

Saine. 

Sec.  4.  Such  association,  by  its  name,  may  sue  and  be  sued,  and  may  loan 
such  funds  as  it  may  have  on  hand,  and  may  own  sufficient  real  estate  for  its 
business  purposes,  and  such  other  real  estate  as  it  may  be  necessary  to  purchase 
on  foreclosure  of  its  mortgages;  provided,  such  real  estate  so  obtained  through 
foreclosure  shall  be  sold  and  conveyed  within  five  years  from  the  day  title  is 
obtained,  unless  the  district  court  of  the  proper  district  shall,  upon  petition 
and  good  cause  shown,  extend  the  time. 
By-laws. 

Sec.  5.  Such  association  may  make  such  by-laws,  not  inconsistent  with  the 
lnws  of  this  state,  as  may  be  necessary  for  its  government,  and  for  the  transac- 
tion of  its  business,  and  shall  not  be  subject  to  the  provisions  of  the  general 
insurance  laws. 

Old  associations. 

Skh.  (\     All  associations  heretofore  formed  for  the  objects  contemplated  by 


ij  602.  Wlicnever  the  rules,  regulations,  or  discipline  of 
any  religious  denomination,  society,  or  church  require,  for  the 
administration  of  the  temporalities  thereof  and  tlie  manage- 
ment of  the  estate  and  property  thereof,  it  shall  be  lawful  for  the 
bishop,  chief  priest,  or  presiding  elder  of  such  religious  denom- 
ination, society  or  church  to  become  a  sole  corporation  in  the 
manner  prescril)ed  in  this  title,  as  nearly  as  may  be,  and  with 
all  the  powers  and  duties  and  for  the  uses  and  purposes  in  this 
title  provided  for  religious  incorporations,  and  subject  to  all  the 
conditions,  limitations,  and  provisions  in  said  title  prescriljed. 
The  articles  of  incorporation  to  be  filed  shall  set  forth  the  facets 
authorizing  such  incorporation  and  declare  the  manner  in  which 
any  vacancy  occurring  in  the  incumbency  of  such  bishoj),  chief 
priest,  or  presiding  elder  is  rccjuired  by  the  rules,  regulations, 
or  discipline  of  such  denomination,  society,  or  church  to  be 
filled,  which  statements  shall  be  verified  by  affidavit ;  and  for 
proof  of  the  appointment  or  election  of  sucii  bisho).,  chief 
priest,  or  presiding  elder,  or  of  any  succeeding  incumbent  of 
such  corporation,  it  shall  be  suflicient  to  record,  with  the  clerk  of 
the  county  in  which  such  bishop,  chief  priest,  or  presiding  elder 
resides,  the  original  or  a  copy  of  his  commission  or  certificate, 
or  letters  of  election  or  appointment,  duly  attested;  provided, 
all  property  held  by  such  l)ishop,  chief  priest,  or  jiresiding  elder 
shall  be  in  trust  for  the  use,  purpose,  and  behoof  of  his  religious 
denomination,  society,  or  church.  The  limitation  in  section  five 
hundreil  and  ninety-five  shall  not  apply  to  corporations  formed 
under  this  section  when  the  land  is  held  or  used  for  churches, 
hospitals,  schools,  colleges,  orphan  asylums,  parsonages,  or 
cemetery  purposes.  The  District  Judge  of  the  district  in  which 
any  incorporation  is  formed  under  this  chapter  shall  at  all 
times  have  access  to  the  books  of  such  incorporation. 


of  its  provisions  by  filing 
at  such  society  shall  not 


f. 

maintain  cemeteries  may 
3ding  three  hundred  and 
icles  of  incorporation  are 
;eiy  for  the  burial  of  the 
ito  lots  or  jilats,  avenues, 
lereof  filed  in  the  office  of 

uated.  Thereafter,  upon 
ictions,  to  be  inserted  in 
jscribe,  the  directors  may 


Sec.  609.  Every  person  of  full  age  who  is  i^roprietor  of  a  lot  or  plat  in  the 

G71 


5609-5614  CIVIL  CODE. 

cemetery  of  the  corporation,  containing  not  less  than  two  hundred  square  feet 
of  laud,  or,  if  there  be  more  than  one  joroprietor  of  any  such  lot,  then  such  of 
the  proprietors  as  the  majority  of  joint  proprietors  designate,  may,  in  person 
or  by  proxy,  cast  one  vote  at  all  elections  had  by  the  corporation  for  directors 
or  any  other  purpose,  and  is  eligible  to  any  office  of  the  corporation.  At  each 
annual  meeting  or  election,  the  directors  must  make  a  report  to  the  proprietors 
of  all  their  doings,  and  of  the  management  and  condition  of  the  property  and 
concerns  of  the  corporation. 

5610.   Jfa;/  hold  iiersonal  property ,  to  loliat  amount. 

Sec.  010.  Such  corporations  may  hold  personal  property  to  an  amount  not 
exceeding  five  thousand  dollars,  in  addition  to  the  surplus  remaining  from  the 
sales  of  lots  or  plats  after  the  j^ayments  required  in  the  succeeding  section. 
Such  suri:)lus  must  be  disposed  of  in  the  improvement,  embellishment,  and 
preservation  of  the  cemeteiy,  and  paying  incidental  expenses  of  the  corpora- 
tion, and  in  no  other  manner. 

5611. .  J/ay  issue  bonds  to  pay  for  grounds. 

Sec.  Gil.  Such  corporations  may  issue  their  bonds,  bearing  interest  not 
exceeding  twelve  per  cent,  per  annum,  for  the  purchase  of  lands  for  their 
cemeteries,  payable  out  of  the  proceeds  of  the  cemetery,  and  not  otherwise. 
Sixty  per  cent,  of  the  proceeds  of  sales  of  lots,  jDlats,  and  graves  must  be 
applied  at  least  every  three  months  to  the  jDayment  of  the  bonds  and  interest. 

5612.  Jllay  take  and  hold  piroperty  or  use  income  thereof,  hoio. 

Sec  G12.  Cemetery  coiporations  may  take  and  hold  any  property  bequeathed 
or  given  them  on  trust,  or  the  lots,  plats,  or  graves  thereon,  for  the  si^ecific 
purpose  of  embellishing  or  improving  the  grounds,  avenues,  or  superstructures 
of  their  cemeteries,  to  use  the  income  thereof,  for  the  erection,  preservation,  or 
repair  of  monuments  therein,  or  for  any  other  purpose  or  design  consistent 
with  the  objects  of  the  corp)oration. 

5613.  Interments  in  lot,  and  effect  thereof. 

Sec.  613.  "Whenever  an  interment  is  made  in  any  lot  or  plat  transferred  to 
individual  owners  by  the  corporation,  the  same  thereby  becomes  forever  inalien- 
able, and  descends  in  regular  line  of  succession  to  the  heirs  at  law  of  the  owner. 
"When  there  are  several  owners  of  interests  in  such  lot  or  j^lat,  one  or  more  may 
acquire  by  purchase  the  interest  of  others  interested  in  the  fee  simple  title 
thereof;  but  no  one  not  an  owner  acquires  interest  or  right  of  burial  therein  by 
purchase;  nor  must  any  one  be  buried  in  any  such  lot  or  plat,  not  at  the  time 
owning  an  interest  therein,  or  who  is  not  the  relative  of  such  owner  or  of  his 
wife,  except  by  consent  of  all  jointly  interested. 

5614.  Lot  ov.-ners  previous  to  jnux'liase  to  be  members  of  tJie  corporation. 

Sec.  614.  AVlien  grounds  purchased  or  otherwise  acquired  for  cemetery  pur- 
poses have  been  previously  used  as  a  burial  ground,  those  who  are  lot  owners 
at  the  time  of  the  purchase  continue  to  own  the  same,  and  are  members  of  the 
corporation,  with  all  the  privileges  a  purchase  of  a  lot  from  the  corporation 
confers. 


672 


GAS  CORPORATIONS.  5G20-5G30 


TITLE  Xiy. 

Sionntltural  Jait  (Torporaliouo* 

5620.  May  acquir-e  and  hold  real  oHlair,  how  much. 

Sec.  620.  Agriciilhiral  fair  corporatious  luay  purchase,  hold  or  lonso  any 
quantity  of  land,  not  exceeding-  in  the  aggre<j^ate  one  hundred  and  sixty  acres, 
with  such  buildings  and  improvements  as  may  be  erected  thereon,  and  may  sell, 
lease  or  otherwise  dispose  of  the  same,  at  pleasure.  This  real  estate  must  bo 
held  for  the  purpose  of  erecting  buildings  and  other  improvements  thereon,  to 
promote  and  encourage  agriculture,  horticulture,  mechanics,  manufactures,  stock 
raising  and  general  domestic  industry, 

5621.  Shall  not  contract  debts  or  liabilities  exceeding  amount  in  treasury. 

Sec.  621.  Such  corporation  must  not  contract  any  debts  or  liabilities  in  excess 
of  the  amount  of  money  in  the  treasury  at  the  time  of  contract,  except  for  the 
purchase  of  real  jjroperty,  for  which  they  may  create  a  debt  not  exceeding  five 
thousand  dollars,  secured  by  mortgage  on  the  i)roperty  of  the  corporation.  The 
directors  who  vote  therefor  are  personally  liable  for  any  debt  contracted  or  in- 
curred in  violation  of  this  section. 

5622.  Not  for  profit. 

Sec.  622.  Agricultural  fair  corporations  are  not  conducted  for  profit,  and 
have  no  capital  stock  or  income  other  than  that  derived  from  charges  to  exhib- 
itors and  fees  for  membership,  which  charges,  together  with  the  term  of  niem- 
bership  and  mode  of  acquiring  the  same,  must  be  provided  for  in  their  by-laws. 
Such  fees  must  never  be  greater  than  to  raise  suflicient  revenue  to  discharge  the 
debt  for  the  real  estate  and  the  improvements  thereon,  and  to  defray  the  current 
expenses  of  fairs. 

TITLE  XY. 

5628.  Corporations  to  obtain  lorivilege  from  city  or  town,  and  use  meters  proved  by 

inspector. 
Sec.  628.  No  corporation  hereafter  formed  must  supply  any  city  or  town  with 
gas,  or  lay  down  mains  or  pipes  for  that  purpose  in  the  streets  or  alleys  thereof, 
without  permission  from  the  city  or  town  authorities,  granted  in  pursuance  of 
the  provisions  of  the  Political  Code  or  of  statutes  expressly  continued  by  such 
code.  Nor  must  such  corporation  furnish  or  use  any  gas  meter  which  has  not 
been  proved  and  sealed  by  the  inspector  of  gas  meters. 

5629.  Gas  to  be  supplied  on  written  appUcaiion. 

Sec.  629.  Upon  the  application  in  writing  of  the  owner  or  occupant  of  any 
building  or  premises  distant  not  more  than  one  hundred  feet  from  any  main  of 
the  corporation,  and  payment  by  the  appKcant  of  all  money  due  from  him,  the 
corporation  must  supply  gas  as  required  for  such  building  or  i)remises,  and 
cannot  refuse  on  the  ground  of  any  indebtedness  of  any  former  owner  or  occu- 
pant thereof,  unless  the  applicant  has  undertaken  to  pay  the  same.  If,  for  the 
space  of  ten  davs  after  such  application,  the  corporation  refuses  or  neglects  to 
supply  the  gas  required,  it  must  pay  to  the  applicant  the  sum  of  fifty  dollars  as 
liquidated  damages,  and  five  dollars  a  day  as  liquidated  damages,  for  every  day 
such  refusal  or  neglect  continues  thereafter. 

5630.  When  corporations  may  refuse  to  supply  gas. 

Sec.  630.  No  corporation  is  required  to  lay  service  pipe  where  serious  obsta- 
cles exist  to  laying  it,  unless  the  applicant,  if  requii-ed,  deposits  in  advance, 
43  673 


5630-5643  CIVIL  CODE. 

with  the  corporation,  a  sum  of  money  sufficient  to  pa}'  the  cost  of  laying  such 
sei'vice  pipe,  or  his  proportion  thereof. 

5631.  Agunt  of  corporatiun  may  inspect  meters. 

Sec.  631.  Any  agent  of  a  gas  corporation  exhibiting  written  authority,  signed 
by  the  president  or  secretary  thereof  for  such  purpose,  may  enter  any  building 
or  premises  lighted  Nvith  gas  supplied  by  such  corporation,  to  inspect  the  gas 
meters  therein,  to  ascertain  the  quantity  of  gas  supplied  or  consumed.  Every 
owner  or  occupant  of  such  buildings  who  hinders  or  prevents  such  entry  or 
inspection  must  pay  to  the  corporation  the  sum  of  fifty  dollars  as  Uquidated 
damages. 

5632.  When  persons  neglect  to  jjay,  gas  may  be  sliui  off. 

Skc.  682.  All  gas  corporations  may  shut  off  the  supply  of  gas  from  any 
person  who  neglects  or  refuses  to  pay  for  the  gas  supplied,  or  the  rent  for  any 
meter,  pipes,  or  fittings  provided  by  the  corporation  as  required  by  his  con- 
tract; and  for  the  purpose  of  shutting  off  the  gas  in  such  case  any  emj)loyeo  of 
the  corporation  may  enter  the  building  or  premises  of  such  person,  between  the 
hours  of  eight  o'clock  in  the  forenoon  and  six  o'clock  in  the  afternoon  of  any 
day,  and  remove  therefrom  any  property  of  the  corporation  used  in  supplying 
gas. 

TITLE  XVI. 

i^'aui)  auD  Uinl^ing  Corporations. 

5639.  HoxKs  organized. 

Sec  639.  Corporations  organized  for  the  erection  of  buildings  and  making 
other  improvements  on  real  property,  may  raise  funds  in  shares  not  exceeding 
two  hundred  dollars  each,  payable  in  periodical  installments.  Such  bodies  are 
known  as  land  and  building  corporations,  and  may  be  organized  with  or  with- 
out a  capital  stock.  [Ameudment,  approved  March  30,  1874;  Amendments  1873-4, 
217;  took  effect  July  1,  1874.'''^ 

5640.  May  borrow  money. 

Sec.  640.  Any  such  corporation  may  borrow  money  for  the  purpose  of  cariy- 
ing  out  its  objects,  and  may  give  as  security  therefor  its  shares  or  mortgage 
upon  its  real  estate. 

5641.  Powers  and  ohject  of  corporation. 

Sec  641.  Any  such  corporation  may  purchase  real  estate  and  erect  buildings 
for  its  members,  and  make  loans  to  its  members  for  the  purpose  of  aiding  them 
in  ac(juiring  and  improving  real  estate.  Such  loan  must  in  all  cases  be  secured 
on  such  real  estate. 

5642.  May  insure  the  lives  of  members  and  debtors. 

Sec  642.  Such  corporation  may  insure,  in  some  life  insurance  company  in- 
corporated under  the  laws  of  this  state,  the  lives  of  its  membei'S  and  debtors. 
In  case  of  the  death  of  a  debtor  or  member  so  insured,  the  amount  recovered 
on  the  policy  must  be  a])plied  to  extinguish  the  indebtedness,  including  the 
j)remium  i)aid,  and  the  re.-iiduo,  if  an}-,  must  be  paid  to  the  legal  rein'esentatives 
of  the  decedent. 

5643.  Wliat  real  estate  may  Ijc  <noned  at  any  one  time. 

Sec  643.  Any  such  corijorutiun  may  purchase,  hold,  and  convey  real  estate, 
as  follows: 

1.  The  lot  and  building  in  wliidi  tlie  business  of  the  corporation  is  carried 
on,  the  cost  of  which  must  not  exceed  twenty  thousand  dollars; 

[a)  Th<;  oriRinal  section,  instnad  of  "  for  thf(Tf;tioii     property, "  had  the  words  "  under  subdivJHion  eleven 
of  buildings  and  making  other  improvements  on  real     of  section '28tj." 

C74 


LAND  AND  BUILDING  COIIPOIIATIONS.  5043-r,(>47 

2.  Such  as  may  from  time  to  time  be  necessary  to  sii])))ly  tlie  wants  of  its 
members,  the  cost  of  which,  hehl  unallotted  to  the  members  thcn-of  ut  anvune 
time,  must  not  exceed  the  sum  of  one  hundred  thousand  dollars; 

3.  Such  as  shall  have  been  mortgaged,  pledged,  or  conveyed  to  it  in  trust,  to 
secure  money  loaned  or  to  secure  the  purchase  price  thereof  in  pursuance  of 
the  regular  business  of  the  corporation. 

5644.  WJiaf  the  hy-laius  may  provide. 

Sec.  644.  The  by-laws  of  such  corporations  must  specify  the  amount  of  the 
periodical  subscriptions  or  payments  to  be  made  by  each  member,  the  time  and 
manner  in  which  such  payments  are  to  be  made;  the  fines  and  forfeiture  for 
default;  the  time  and  manner  of  election  of  directors  and  otiier  officers,  and 
their  terms  of  office;  the  manner  in  which  the  real  estate  may  be  distributed, 
allotted,  or  sold  to  its  members;  the  terms  and  conditions  upon  which  loans 
may  be  made  to  its  members  and  by  them  repaid  to  the  corporation;  the  manner 
in  which  a  person  may  become  and  cease  to  be  a  meinl)t'r;  the  conditions  an 
which  members  may  withdraw  from  the  corporation,  and  the  provisions  f(jr  tlie 
payment  to  withdrawing  members  of  the  sums  of  money  due  to  them  arising 
from  subscrij)tions  or  payments,  and  the  proi^ortion  of  the  profits  such  with- 
drawing members  may  receive  on  withdrawal. 

5645.  Secretary  must  make  annual  slalemod,  and  publisli  same. 

Sec.  645.  The  secretary  of  any  such  corporation  must,  once  in  each  yo;ir  din- 
ing the  existence  of  the  corporation,  prepare  a  full  and  explicit  statement  of  the 
financial  affairs  thereof,  comprising  a  balance  sheet,  statements  of  receijjts  and 
expenditures,  profit  and  loss,  and  assets  and  liabilities,  which  must  be  audited 
and  verified  by  two  competent  persons  (not  directors),  elected  by  the  general 
body  of  shareholders,  and  be  countersigned  by  the  president  and  secretary.  A 
copy  of  such  statement  must  be  printed  and  circulated  among  the  mend)ers, 
and  appear  immediately  after  the  annual  meeting  of  the  corporation  daily  at 
least  one  week,  or  weekl}'  at  least  four  weeks,  in  one  or  more  newspapers  i)ub- 
lished  at  the  place  of  the  principal  business  of  the  corporation. 

5646.  [Sec.   646'=^*  was  repealed   by  act  approved  March  30,  1874;   Amend- 
ments 1873-4,  217;  took  effect  July  1,  1874.  J 

5647.  Consolidalion  and  transfer  of  corporation  business  and  property. 

Sec  647.  Any  two  or  more  such  corporations  may  unite  and  become  incor- 
porated in  one  body,  with  or  without  any  dissolution  or  division  of  the  funds 
of  such  corporation,  or  either  of  them;  or  any  such  corporation  may  transfer  its 
engagements,  funds,  and  property  to  any  other  such  corporation,  upon  such 
terms  as  may  be  agreed  upon  by  two  thirds  of  the  members  of  each  of  such 
bodies  present  at  general  meetings  of  the  members,  convened  for  the  purpose 
by  notice,  stating  the  object  of  the  meeting,  sent  through  the  post-office  to 
every  member,  and  by  general  notice,  appearing  daily  at  least  one  week,  or 
weekly  at  least  two  weeks,  in  some  newspaper  published  at  the  phxco  of  the 
principal  business  of  the  corporation;  but  no  such  transfer  can  proju.lice  any 
right  of  any  creditor  of  either  corporation, 

[Sec.  648'"'  was  repealed  by  act  approved  March  30,  1874;  Amendments 
1873-4,  217;  took  effect  July  1,  1874.] 

la)  Kepealed  section-  corporation  is  unable  to  satisfy  biu-U  tU'Ms  nml  li«biH- 

Sec.  lilfl.  Every  present  and  past  member  of  such  cor-  ties;  nor  mu»t  any  contributi,.u  be  r.Miuiro.1  fr..iu  «i.y 

poratiou  is  personally  liable  for  such  proportion  of  all  member  or  past  menib>-r  ex.ee,l.[i«  the  '|i'>;'unt  iinpuld 

its  debts  and  liabilities,  incurred  during  his  member-  ou  the  shares  lu  respe.t  ot  which  he  is  liable. 

ship.as  the  number  ot  shares  subscribed  by  Uiiu  bears  {h)   Uepealed  section:                  ,„...,„  ..  i...  .^.„i..^i 

to  the  whole  number  ot  subscribed  shares;  but  no  past  Sicc.  ..4^.  Married  wonien  ""'l '"  «»«  «.>  be  »<»  nitt^ 

member  is  liable  for  such  contribution  if  more  tu  tn  as  members  and  mi.y  take  and   ...Id  sh-irc.  '"  ^'';  '  ' "  J" 

one  year  has  elapsed  since  he  ceased  to  be  a  member  p.  .rations  and  may  execute   .1    ■!<-•«■'««'•>    ns  rume   tn 

before  suit  is  commenced,  nor  for  any  debt  or  liability  and  -.  ve  a  1  uecess  iry  acqu  tt  inres  an d  sj    an     t^^ 

contracted  after  the  time  at  which  he  ceased  to  be  a  fer  their  shares,  in  like  mauuer  us,  other  momberb. 
member,  uor  unless  it  appears  to  the  court  that  the 

675 


5654-5659  CIVIL  CODE. 


DIVISION  SECOND. 

Paet  I.  PROPEETY  IN  GENERAL 5C54 

II.  REAL  OR  I^kBIOVABLE  PROPERTY 5755 

III.  PERSONAL  OR  MOVABLE  PROPERTY 594G 

IV.  ACQUISITION  OF  PROPERTY GOOO 


I^J^RT    I. 

PPtOPEPvTY  IN  GENERAL. 

Title  I.  Nature  of  Propeety 5654 

II.  OwNEi;snip 5669 

ITT.  General  Definitions 6748 


TITLE    I. 

llahm  of  |Ji0|ici1ij. 

5654.  Properhj,  what. 

Sec.  654.  The  ownership  of  a  thing-  is  the  right  of  one  or  more  persons  to 
possess  and  use  it  to  the  exclusion  of  others.  In  this  code,  the  thing  of  which 
there  may  be  ownership  is  called  property. 

5655.  In  wliaf  j^roperty  may  exist. 

Sec.  655.  There  may  be  ownership  of  all  inanimate  things  which  are  callable 
of  appropriation  or  of  manual  delivery;  of  all  domestic  animals;  of  all  obliga- 
tions; of  such  products  of  labor  or  skill  as  the  composition  of  an  author, 
the  good  will  of  a  business,  trade-marks  and  signs,  and  of  rights  created  or 
granted  h\  statute. 

5656.  Wild  animals. 

Sec.  656.  Animals  wild  by  nature  are  the  subjects  of  ownership  while  living, 
only  when  on  the  land  of  the  person  claiming  them,  or  when  tamed,  or  taken 
and  held  in  possession,  or  disabled  and  immediately  pursued. 

5657.  Heal  and  personal. 

Sec  657.  Property  is  either: 

1.  Real  or  immovable;  or, 

2.  Personal  or  movable. 

5658.  Ileal  projoerty. 

Sec  658.  Real  or  immovable  property  consists  of; 

1.  Land; 

2.  That  which  is  affixed  to  huid; 

3.  That  which  is  incidental  or  appurtenant  to  land; 

4.  That  which  is  inujiovuble  by  law. 

5659.  Laiid. 

Sec  659.  Land  is  the  solid  material  of  the  earth,  whatever  may  be  tlie  ingre- 
dients of  which  it  is  composed,  whether  soil,  rock,  or  other  substance. 

076 


PROPEKTY  IN  GENERAL.  5CG0-5G72 

5660.  Fixtures. 

Sec.  6G0.  A  thing  is  deemed  to  be  affixed  to  lund  ^vlu'n  it  is  ,ittu.-],ed  f.;  it  l.v 
roots,  as  m  the  case  of  trees,  vinos,  or  shrubs;  or  inibeddc.l  i.i  it    hh  in  the  oas', 
of  walls;  or  permanently  resting  upon  it,  as  in  the  case  of  buildin-s-  or  i)er 
manentlj  attached  to  what  is  thus  permanent,  as  by  means  of  cement,'  plaster 
nails,  bolts,  or  screws.  ' 

5661.  Fixtures  attached  to  mines. 

Sec.  661.  Sluice  boxes,  flumes,  hose,  pipes,  railway  bracks,  cars,  blacksmith 
shops,  mills,  and  all  other  machinery  or  tools  used  in  working  or  develoi.i)!-  a 
mine,  are  to  be  deemed  affixed  to  the  mine.  ° 

5662.  Appurtenances. 

Sec  662.  A  thing  is  deemed  to  be  incidental  or  appurtenant  to  land  when  it 
IS  by  right  used  with  the  land  for  its  benefit,  as  in  the  case  of  a  way,  or  water- 
course, or  of  a  passage  for  light,  air,  or  heat  from  or  across  the  land  of  another. 

5663.  Personal  property. 

Sec.  663.  Every  kind  of  property  that  is  not  real  is  personal. 


TITLE  II. 

Chapter    I.  Owners 5669 

II.  Modifications  of  Ownership 5678 

III.  Rights  of  Owners 57:}2 

IV.  Termination  of  Ownership 573<j 

CHAPTER   I. 

OWNERS. 

5669.  Owner. 

Sec  5669.  All  property  has  an  owner,  whether  that  owner  is  the  state,  and 
the  property  public,  or  the  owner  an  individual,  and  the  proi:)erty  private.  The 
state  may  also  hold  property  as  a  private  proprietor. 

5670.  Property  of  state. 

Sec  670.  The  state  is  the  owner  of  all  land  below  tide-water,  and  below 
ordinary  high-water  mark,  bordering  ujDon  tide-water  within  the  state;  of  all 
land  below  the  water  of  a  navigable  lake  or  stream;  of  all  property  lawfully 
appropriated  by  it  to  its  own  use;  of  all  property  dedicated  to  tlie  state,  and  of 
all  property  of  which  there  is  no  other  owner.  [Amendment,  approved  March 
30,  1874;  Amendments  1873-4,  217;  took  efect  July  1,  1874.<''> 
5871.    Who  may  own  property. 

Sec  671.  Any  person,  whether  citizen  or  alien,  may  take,  hold,  and  dis]iose 
of  property,  real  or  personal,  within  this  state.     [Amendment,   appyn;!    M.irr), 
30,  1874;  Amendments  1873-4,  217;  took  effect  July  1,  1874."" 
5672.  Aliens  inheriting  must  claim  xoithinfive  years. 

Sec  672.  If  a  non-resident  alien  takes  by  succession,  he  must  ajipcar  and 
claim  the  property  within  five  years  from  the  time  of  succession,  or  be  barred. 
The  property  in  such  case  is  disposed  of  as  provided  in  Title  VIII,  Part  III, 
Code  of  Civil  Procedure.     [See  post,  11,269. J 

(a)  Original  section:  property  dedicHted  to  the  stnto,  and  of  aU  pn>porty  of 

Sec.  670.  The  state  is  the  owner  of  aU  land  below  which  there  is  no  otherowuer. 

high  water  mark  bordering  upon  tide  water;  of  all         (h)  Original  section: 

land  below  the  water  of  a  lake  or  stream  which  con-         Sec.  fiTl.  Any  pei-sou,  whether  citizen  or  alien,  may 

stitutes  an  exterior  boundary  of  the  state;  of  aU  prop-  take  and  hold  property,  real  or  persnual. 

erty  lawfully  appropriated  by  it  to  its  own  use;  of  all 

677 


5678-5G87  CIVIL  CODE. 

CHAPTER  II. 

MODIFICATIONS   OF   OWNERSHIP. 

Abticle   I.  Intekksts  in  Peopkrty 5678 

II.  Conditions  of  Ownkkship 5707 

III.  EESTRAIN're  UPON  Aliknation 5715 

IV.  ACCCMCLATIONS ,  5722 

AETICLE  I. 

INTERESTS    IN    PROPERTY. 

5678.  Ownnship,  absohife  or  qualified. 

Sec.  G78.  The  ownership  of  jDroperty  is  either: 

1.  Absolute;  or, 

2.  Qualified. 

5679.  When  absolute. 

Sec.  679.  The  ownership  of  property  is  absolute  when  a  single  person  has  the 
absolute  dominion  over  it,  and  may  use  it  or  dispose  of  it  according  to  his 
pleasure,  subject  only  to  general  laws. 

5680.  When  qualified. 

Sec.  680.  The  ownership  of  j)roj)erty  is  qualified: 

1.  "When  it  is  shared  with  one  or  more  persons; 

2.  "When  the  time  of  enjoyment  is  deferred  or  limited; 

3.  "When  the  use  is  restricted. 

5681.  Several  ownejsJiip,  what. 

Sec.  681.  The  ownership  of  property  by  a  single  joerson  is  designated  as  a 
sole  or  several  ownership. 

5682.  Oionership  of  several  2')ersons. 

Sec.  682.  The  ownership  of  property  by  several  persons  is  either: 

1.  Of  joint  interests; 

2.  Of  partnership  interests; 

3.  Of  interests  in  common; 

4.  Of  community  interest  of  husband  and  wife. 

5683.  Joint  interest,  ichat. 

Sec.  683,  A  joint  interest  is  one  owned  by  several  persons  in  equal  shares,  by 
a  title  created  by  a  single  will  or  transfer,  when  expressly  declared  in  the  will 
or  transfer  to  be  a  joint  tenancy,  or  when  granted  or  devised  to  executors  or 
trustees  as  joint  tenants. 

5684.  Partnership  interest,  vhat. 

Sec  684.  A  partnership  interest  is  one  owned  by  several  persons,  in  pai-tner- 
ship,  for  partnership  purposes. 

5685.  Interest  in  common,  xoliat. 

Sec.  685.  An  interest  in  common  is  one  owned  by  several  persons,  not  in 
joint  ownershiji  or  partnership. 

5686.  WJiat  interests  are  in  common. 

Sec.  686.  Every  interest  created  in  favor  of  several  jiersons  in  their  own  right 
is  an  interest  in  common,  unless  acquired  by  them  in  partnei'ship,  for  partner- 
ship purposes,  or  unle.ss  declared  in  its  creation  to  be  a  joint  interest,  as  pro- 
vided in  section  683,  or  unless  acquired  as  community  property. 

5687.  Community  jjropertij. 

Sec  687,  Communitj'  property  is  property  acquired  by  husband  and  wife,  or 
either,  during  mamage,  when  not  acquired  as  the  separate  property  of  either, 

678 


PEOPERTY  IN  GENERAL.  5088-5702 

56B8.  Intercf^fs  as  to  time. 

Sec.  G88.  In  respect  to  the  time  of  enjoyment,  an  interest  in  proix'rty  is  t-itber: 

1.  Present  or  future;  and, 

2.  Perpetual  or  limited. 

5689.  Fr-eseiU  interest,  ichat. 

Sec.  G89.  A  j^resent  interest  entitles  the  owner  to  the  innncdiute  ]i(i',>--.s^inn 
of  the  j)roperty, 

5690.  Future  interest,  ii;hat. 

Sec.  690.  A  future  interest  entitles  the  owner  to  the  possession  of  the  j)rop- 
erty  only  at  a  future  period. 

5691.  Perpetual  interest,  what. 

Sec.  G91.  A  jDerpetual  interest  has  a  duration  equal  to  that  of  the  proj.crty. 

5692.  Limited  interest,  what. 

Sec.  G92.  A  limited  interest  has  a  duration  less  than  that  of  the  property. 

5693.  Kinds  of  future,  interests. 

Sec.  G93.  A  future  interest  is  either: 

1.  Vested;  or, 

2.  Contingent. 

5694.  Vested  interests. 

Sec.  694.  A  future  interest  is  vested  w'hen  there  is  a  person  in  beinpf  who 
would  have  a  right,  defeasible  or  indefeasible,  to  the  immediate  possession  of 
the  property,  upon  the  ceasing  of  the  intermediate  or  precedent  interest. 

5695.  Contingent  inteirsts. 

Sec.  695.  A  future  interest  is  contingent  wliilst  the  person  in  whom,  or  the 
event  upon  which  it  is  limited  to  take  effect  remains  uncertain. 

5696.  Two  or  more  future  interests. 

Sec.  696.  Two  or  more  future  interests  may  be  createcLto  take  effect  in  the 
alternative,  so  that  if  the  first  in  order  fails  to  vest,  the  next  in  succession  shall 
be  substituted  for  it,  and  take  effect  accordingly. 

5697.  Certain  future  interests  not  to  be  void. 

Sec.  697.  A  future  interest  is  not  void  merely  because  of  the  improbabihty  of 
the  contingency  on  which  it  is  limited  to  take  effect. 

5698.  Posthumous  children. 

Sec.  698.  When  a  future  interest  is  limited  to  successors,  heirs,  i.ssue,  or 
children,  posthumous  children  are  entitled  to  take  in  the  same  manner  as  if 
living  at  the  death  of  their  parent, 

5699.  Qualities  of  expectant  estates. 

Sec.  699,  Future  interests  pass  by  succession,  will,  and  transfer,  in  the  .same 
manner  as  present  interests. 

5700.  Mere  possibility  not  an  interest. 

Sec.  700.  A  mere  possibility,  such  as  the  expectancy  of  an  heir  apparent,  is 
not  to  be  deemed  an  interest  of  any  kind. 

5701.  Interests  in  real  property. 

Sec.  701.  In  respect  to  real  or  immovable  property,  the  interests  mentioned 
in  this  chapter  are  denominated  estates,  and  are  specially  named  and  classified 
in  Part  II  of  this  Division. 

5702.  Interests  in  personal  pi-opeyiy. 

Sec.  702.  The  names  and  classification  of  interests  in  real  property  have  only 
such  application  to  interests  in  personal  property  as  is  in  this  division  of  the 
code  expressly  provided. 

679 


5703-5718  CIYIL  CODE. 

5703.    What  future  interests  are  recognized. 

Sec.  703.  No  future  interest  in  property  is  recognizecl  by  the  law,  except  such 
as  is  deiined  in  this  diN^siou  of  the  code. 

AETICLE  II. 

COXDITIOXS    OF    OWNERSHIP. 

5707.  Fixing  the  time  of  enjoyment. 

Sec.  707.  The  time  when  the  enjoyment  of  property  is  to  begin  or  end  may 
be  determined  by  computation,  or  be  made  to  depend  on  events.  In  the  latter 
case,  the  enjoyment  is  said  to  be  upon  condition. 

5708.  Conditions. 

Sec  70S.  Conditions  are  precedent  or  subsequent.  The  former  fix  the  be- 
ginning, the  latter  the  ending,  of  the  right. 

5709.  Certain  conditions  precedent  void. 

Sec  709.  If  a  condition  precedent  requires  the  performance  of  an  act  wrong 
of  itself,  the  instinimeut  containing  it  is  so  far  void,  and  the  right  cannot  exist. 
If  it  requires  the  performance  of  an  act  not  wrong  of  itself,  but  otherwise  un- 
lawful, the  instrument  takes  effect  and  the  condition  is  void. 

5710.  Conditio7is  restraining  marriage  are  void. 

Sec  710.  Conditions  imposing  restraints  upon  marriage,  except  upon  the 
marriage  of  a  minor,  are  void;  but  this  does  not  affect  limitations  where  the 
intent  was  not  to  forbid  marriage,  but  only  to  give  the  use  until  mai'riage. 
[Amendment,  approved  March  ^Q ,  1874;  Amendments  1^1  ^—k,  21^;  took  effect  July 
1,  1874.^*> 

5711.  Conditions  restraining  alienation  void. 

Sec  711.  Conditiqjis  restraining  alienation,  when  repugnant  to  the  interest 
created,  are  void. 

AETICLE  III. 

RESTRAINTS    UPON   ALIENATION. 

5715.  IIow  long  it  may  be  suspended. 

Sec  715.  The  absolute  power  of  alienation  cannot  be  suspended,  by  any  lim- 
itation or  condition  whatever,  for  a  longer  period  than  during  the  continuance 
of  the  lives  of  persons  in  being  at  the  creation  of  tlie  limitation  or  condition, 
except  in  the  single  case  mentioned  in  section  772. 

5716.  Future  interests  void,  which  suspend  power  of  alienation. 

Sec.  71G.  Every  future  interest  is  void  in  its  creation  which,  by  any  possibil- 
ity, may  suspend  the  absolute  power  of  alienation  for  a  longer  period  than  is 
prescribed  in  this  chapter.  Such  power  of  alienation  is  suspended  when  there 
are  no  persons  in  being  by  whom  an  absolute  interest  in  possession  can  be  con- 
veyed. 

5717.  Lipases  of  agricultural  land,  for  over  ten  years,  void. 

Sec  717.  No  lease  or  grant  of  agricultural  land  for  a  longer  period  than  ten 
years,  in  which  shall  be  reserved  any  rent  or  service  of  any  kind,  shall  be  valid. 

5718.  Leases  of  city  lots,  for  over  twenty  years,  void. 

Sec  718.  No  lease  or  grant  of  any  town  or  city  lot,  for  a  longer  period  than 
twenty  years,  in  which  shall  be  reserved  any  rent  or  service  of  any  kind,  shall 
be  valid. 

(a)  The  original  section  did  not  have  the  last  clause  commencing  with  the  words  "but  this  does  not  affect 
limitatiouii." 

C80 


PKOPEKTY  IN  GENERAL.  5722-5739 

ARTICLE  IV. 

ACCUMULATIONS. 

5722.  Dispositions  of  income. 

Sec.  722.  Dispositions  of  the  income  of  property  to  accrue  and  to  "be  received 
at  any  time  subsequent  to  the  execution  of  the  instrument  creating  such  dispo- 
sition, are  governed  by  the  rules  prescribed  in  this  title  in  relation  to  future 
interests. 

5723.  Accumulations,  ivhen  void. 

Sec  723.  All  directions  for  the  accumulation  of  the  income  of  property,  ex- 
cept such  as  are  allowed  by  this  title,  are  void. 

5724.  Accumulation  of  income. 

Sec  724.  An  accumulation  of  the  income  of  property,  for  the  benefit  of  one 
or  more  persons,  may  be  directed  by  any  will  or  transfer  in  writing  sufficient  to 
pass  the  property  out  of  which  the  fund  is  to  arise,  as  follows : 

1.  If  such  accumulation  is  directed  to  commence  on  the  creation  of  the  inter- 
est out  of  which  the  income  is  to  arise,  it  must  be  made  for  the  benefit  of  one  or 
more  minors  then  in  being,  and  terminate  at  the  expiration  of  their  minority;  or, 

2.  If  such  accumulation  is  directed  to  commence  at  any  time  subsequent  to 
the  creation  of  the  interest  out  of  which  the  income  is  to  arise,  it  must  com- 
mence within  the  time  in  this  title  permitted  for  the  vesting  of  future  interests, 
and  during  the  minority  of  the  beneficiaries,  and  terminate  at  the  expiration  of 
such  minority. 

5725.  Other  directions,  when  void  in  part. 

Sec  725.  If  in  either  of  the  cases  mentioned  in  the  last  section  the  direction 
for  an  acciamulation  is  for  a  longer  term  than  during  the  minority  of  the  bene- 
ficiaries, the  direction  only,  whether  separable  or  not  from  other  provisions  of 
the  instrument,  is  void  as  respects  the  time  beyond  such  minority. 

5726.  Application  of  income  to  support,  etc. ,  of  minor. 

Sec  726.  "When  a  minor  for  whose  benefit  an  accumulation  has  been  directed 
is  destitute  of  other  sufficient  means  of  support  and  education,  the  proper 
court,  upon  application,  may  direct  a  suitable  sum  to  be  applied  thereto  out  of 
the  fund. 

CHAPTEE  III. 

EIGHTS  OF   OWNEKS. 

5732.  Increase  of  property. 

Sec  732.  The  owner  of  a  thing  owns  also  all  its  products  and  accessions. 

5733,  In  certain  cases,  who  entitled  to  income  of  property. 

Sec  733.  When,  in  consequence  of  a  valid  limitation  of  a  future  interest, 
there  is  a  suspension  of  the  power  of  alienation  or  of  the  ownership  during  the 
continuation  of  which  the  income  is  undisj)osed  of,  and  no  valid  du-ection  for  its 
accumulation  is  given,  such  income  belongs  to  the  persons  j^resumx^tively 
entitled  to  the  next  eventual  interest. 


CHAPTEE  IV. 

TERMINATION  OF   OWNERSHIP. 

5739.  Future  interests,  when  defeated. 

Sec.  739.  A  future  interest,  depending  on  the  contingency  of  the  death  of 
any  person  without  successors,  heirs,  issue,  or  children,  is  defeated  by  the 
birth  of  a  posthumous  child  of  such  person,  capable  of  taking  by  succession. 

681 


5740-5749  CIYIL  CODE. 

5740.  Same. 

Sec.  740.  A  future  interest  may  be  defeated  in  any  manner  or  by  any  act  or 
means  which  the  party  creating  such  interest  provided  for  or  authorized  in  the 
creation  thereof;  nor  is  a  future  interest,  thus  liable  to  be  defeated,  to  be  on 
that  ground  adjudged  void  in  its  creation. 

5741.  Future  iiilei-esls,  u-hen  not  defeated. 

Sec.  741.  No  future  interest  can  be  defeated  or  ban-ed  by  any  alienation  or 
other  act  of  the  owner  of  the  intermediate  or  precedent  interest,  nor  by  any 
destruction  of  such  precedent  interest  by  forfeiture,  surrender,  merger,  or 
otherwise,  except  as  jirovided  by  the  next  section,  or  where  a  forfeitui-e  is  im- 
jjosed  by  statute  as  a  penalty  for  the  violation  thereof. 

5742.  Same. 

Sec.  742.  No  future  interest,  valid  in  its  creation,  is  defeated  by  the  deter- 
mination of  the  precedent  interest  before  the  hapj)ening  of  the  contingency  on 
which  the  future  interest  is  limited  to  take  effect;  but  should  such  contingency 
afterwards  happen,  the  future  interest  takes  effect  in  the  same  manner  and  to 
the  same  extent  as  if  the  precedent  interest  had  continued  to  the  same  period. 


TITLE   III. 

5748.  Income,  what. 

Sec,  748.  The  income  of  property,  as  the  term  is  used  in  this  j^art  of  the 
code,  includes  the  rents  and  profits  of  real  proiDcrty,  the  interest  of  money, 
dividends  upon  stock,  and  other  produce  of  personal  property. 

5749.  Time  of  creation,  what. 

Sec.  749.  The  delivery  of  the  gi'ant,  where  a  limitation,  condition,  or  future 
interest  is  created  by  grant,  and  the  death  of  the  testator,  where  it  is  created 
by  will,  is  to  be  deemed  the  time  of  the  creation  of  the  limitation,  condition,  or 
interest,  within  the  meaning  of  this  j)art  of  the  code. 


682 


REAL  PROrERTY.  5755-5763 


I^A-HT    II. 

EEAL  OR  IMMOVABLE  PROPERTY. 

Title  I.  Genekal  Provisions 5755 

II.  Estates  in  Real  Property 57G1 

III.  Rights  and  Obligations  of  Owners 5118 

•IV.  Uses  and  Trusts 5847 

V.  Powers 5878 


TITLE  I. 

(Sencral  IJroubJon^j. 

5755.  Law  governing  real  property. 

Sec.  755.  Real  property  within  this  state  is  governed  by  the  law  of  this  state, 
except  where  the  title  is  in  the  United  States.  [Amendment,  approved  3Iarch  30, 
1874;  Amendments  1873-4,  218;  took  effect  July  1,  1874.'^' 


TITLE  II. 

^0tatc$  in  JJcal  |Jro|if rtij. 

Chapter  I.  Estates  in  General 5761 

II.  Termination  of  Estates 5789 

III.  Servitudes 5801 

CHAPTER  I. 

estates  in  general. 

5761.  Enumeration  of  estates. 

Sec.  761.  Estates  in  real  property,  in  respect  to  the  duration  of  their  enjoy- 
ment, are  either: 

1.  Estates  of  inheritance  or  perpetual  estates; 

2.  Estates  for  life; 

3.  Estates  for  years;  or, 

4.  Estates  at  will. 

5762.  Estates  in  fee. 

Sec.  762.  Every  estate  of  inheritance  is  a  fee,  and  every  such  estate,  when  not 
defeasible  or  conditional,  is  a  fee  simjile,  or  an  absolute  fee.  [Ameiidment,  ap- 
proved March  30,  1874;  Amendments  1873-4,  218;  took  effect  July  1,  1874.^'^> 

5763.  Conditional  fees  and  estates  tail  abolished. 

Sec.  763.  Estates  tail  are  abolished,  and  every  estate  which  would  be  at  com- 
mon law  adjudged  to  be  a  fee  tail  is  a  fee  simple;  and  if  no  valid  remainder  is 
limited  thereon,  is  a  fee  simple  absolute. 

(a)  The  orif^inal  Bection  did  not  have  the  last  clause  ing  the  abolition  of  tenures,  continues  to  be  called  a 

commencing  with  the  words  "  escept  where  the  title."  fee  simple,  or  fee;  and  every  Bi:ch  estate,  when  not  de- 

(6)   Original  section:  feasible  or  conditional,  is  called  a  fee  simple  absolute. 

Sec.  762.  Every  estate  of  inheritance,  notwithstand-  or  an  absolute  fee. 

683 


5764:-5773  CB'IL  CODE. 

5764.  Certain  remainders  valid. 

Sec.  704:.  Where  a  remainder  iu  fee  is  limited  uj^on  any  estate,  wliich  would 
by  the  common  law  he  adjudged  a  fee  tail,  such  remainder  is  valid  as  a  con- 
tingent limitation  ujion  a  fee,  and  vests  in  possession  on  the  death  of  the  first 
taker,  without  issue  living  at  the  time  of  his  death. 

5765.  Freeholds — Chattels  real — Chattel  interests. 

Sec.  7G5.  Estates  of  inheritance  and  for  life  are  called  estates  of  freehold; 
estates  for  years  are  chattels  real;  and  estates  at  will  are  chattel  interests,  but 
are  not  liable  as  such  to  sale  on  execution, 

5766.  Estate  for  life  of  a  third  2)srson,  a  fi'eehold. 

Sec  7GG.  An  estate  during  the  life  of  a  third  person,  whether  limited  to 
lieii'S  or  otherwise,  is  a  freehold.  [Amendment,  approved  March  30,  1874; 
Amendments  1873-4,  218;  took  effect  July  1,  1874.'"^ 

5767.  Fi(fu7-e  estates,  ichat. 

Sec.  7(J7.  A  future  estate  may  be  limited  by  the  act  of  the  party  to  commence 
in  i^ossession  at  a  future  day,  either  without  the  intervention  of  a  precedent 
estate,  or  on  the  termination,  by  lapse  of  time  or  otherwise,  of  a  precedent 
estate  created  at  the  same  time. 

5763.  Reversions. 

Sec  708.  A  reversion  is  the  residue  of  an  estate  left  by  operation  of  law  in 
the  grantor  or  his  successors,  or  in  the  successors  of  a  testator,  commencing  in 
possession  on  the  determination  of  a  particular  estate  granted  or  devised. 

5769.  Remainders. 

Sec  709.  'S\'hen  a  future  estate,  other  than  a  reversion,  is  dej)endent  on  a 
precedent  estate,  it  may  be  called  a  remainder,  and  may  be  created  and  trans- 
fen-ed  by  that  name. 

5770.  Limitations  of  chattels  real. 

Sec.  770.  The  absolute  ownership  of  a  term  of  years  cannot  be  suspended  for 
a  longer  period  than  the  absolute  power  of  alienation  can  be  suspended  in 
respect  to  a  fee.  [Amendment,  approved  March  30,  1874;  Amendments  1873-4, 
218;  took  effect  July  1,  1874.*"' 

5771.  Suspension  by  trust. 

Sec  771.  The  suspension  of  all  pow'er  to  alienate  the  subject  of  a  trust,  other 
than  a  j)ower  to  exchange  it  for  other  j)roperty  to  be  held  upon  the  same  trust, 
or  to  sell  it  and  reinvest  the  proceeds  to  be  held  upon  the  same  trust,  is  a  sus- 
pension of  the  jjower  of  alienation,  within  the  meaning  of  section  715. 

5772.  Contingent  remainder  in  fee. 

Sec  772.  A  contingent  remainder  in  fee  may  be  created  on  a  prior  remainder 
m  fee,  to  take  effect  in  the  event  that  the  persons  to  whom  the  first  remainder 
IS  limited  die  under  the  age  of  twenty-one  years,  or  upon  an^^  other  contingency 
by  Avhich  the  estate  of  such  persons  may  be  determined  before  they  attain 
majority. 

5773.  Remainders,  future  and  contingent  estates,  how  created. 

Sec  773.  Subject  to  the  rules  of  this  title,  and  of  Part  I  of  this  Division,  a 
freehold  estate,  as  well  as  a  chattel  real,  may  be  created  to  commence  at  a  future 
day;  an  estate  for  life  may  be  created  in  a  term  of  years,  and  a  remainder  lim- 
ited thereon;  a  remainder  of  a  freehold  or  chattel  real,  either  contingent  or 

(a)  0ri(,'iD8l  BC'ctlon:  (h)  The  original  section  had  the  following  prefatory 

Bkc.  70(..  An  ihtitte  during  the  life  of  a  third  prrson,  -wiiraK:    "The  iJroviHions  of  Title  II  of  Pint   I  of  this 

whether  liiuited  to  heirh  or  otherwise,  is  ii  freehold  DiviBion,  relative  to  future  entuteB,  apply  to  liniitiitions 

only  during  tlie  life  of  the  grantee  or  deviBte.    After  of  chuttelB  real,  ae  well  as  to  freehold  eatates,  so  that." 

DIB  death  it  in  a  chattel  real. 

C84 


EEAL  PROPERTY.  5773-5789 

vested,  may  be  created,  exi:)ectant  on  the  determination  of  a  term  of  years;  and 
a  fee  may  be  limited  on  a  fee,  upon  a  contingency,  which,  if  it  should  occur, 
must  hapi:)en  within  the  period  prescribed  in  this  title. 

5774.  Limitation  of  successive  estates  for  life. 

Sec.  774.  Successive  estates  for  life  cannot  be  limited,  except  to  persons  in 
being  at  the  creation  thereof,  and  all  life  estates  subsequent  to  those  of  persons 
in  being  are  void;  and  upon  the  death  of  those  persons  the  remainder,  if  valid  in 
its  creation,  takes  effect  in  the  same  manner  as  if  no  other  life  estate  had  been 
created.  [Amendment,  approved  March  30,  1874;  Amendments  1873-4,  219;  took 
effect  July  1,  1874.^"' 

5775.  Remainder  upon  estates  for  life  or  term  of  years. 

Sec.  775.  No  remainder  can  be  created  upon  successive  estates  for  life,  pro- 
vided for  in  the  preceding  section,  unless  such  remainder  is  in  fee;  nor  can  a 
remainder  be  created  upon  such  estate  in  a  term  for  years,  tinless  it  is  for  the 
whole  residue  of  such  term.  [Amendme7il,  approved  31arch  30,  1874;  Amend- 
ments 1873-4,  219;  took  effect  July  1,  1874.^'" 

5776.  Contingent  remainder  on  a  term  of  years. 

Sec.  776.  A  contingent  remainder  cannot  be  created  on  a  term  of  years,  unless 
the  nature  of  the  contingency  on  which  it  is  limited  is  such  that  the  remainder 
must  vest  in  interest  during  the  continuance  or  at  the  termination  of  lives  in 
being  at  the  creation  of  such  remainder. 

5777.  Remainder  of  estates  for  life. 

Sec.  777.  No  estate  for  life  can  be  limited  as  a  remainder  on  a  term  of  years, 
except  to  a  person  in  being  at  the  creation  of  such  estate. 

5778.  Remainder  upon  a  contingency. 

Sec.  778.  A  remainder  may  be  limited  on  a  contingency  which,  in  case  it 
should  happen,  will  operate  to  abridge  or  determine  the  precedent  estate;  and 
every  such  remainder  is  to  be  deemed  a  conditional  limitation. 

5779.  Heirs  of  a  tenant  for  life,  ivhen  to  fake  as  purchasers. 

Sec  779.  When  a  remainder  is  limited  to  the  heirs,  or  heirs  of  the  body,  of  a 
person  to  whom  a  life  estate  in  the  same  property  is  given,  the  persons  who,  ou 
the  termination  of  the  life  estate,  are  the  successors  or  heirs  of  the  bod}-  of  the 
owner  for  life,  are  entitled  to  take  by  virtue  of  the  remainder  so  limited  to  them, 
and  not  as  mere  successors  of  the  owner  for  hfe. 

5780.  Construction  of  certain  remainders. 

Sec  780.  When  a  remainder  on  an  estate  for  life,  or  for  years,  is  not  limited 
on  a  contingency  defeating  or  avoiding  such  precedent  estate,  it  is  to  be  deemed 
intended  to  take  effect  only  on  the  death  of  the  first  taker,  or  the  expiration,  by 
lapse  of  time,  of  such  term  of  years. 

5781.  Effect  of  power  of  appointment. 

Sec  781.  A  general  or  special  power  of  appointment  does  not  prevent  the 
vesting  of  a  future  estate  limited  to  take  effect  in  case  such  power  is  not 
executed. 

CHAPTER  II. 

TERMINATION   OF   ESTATES. 

5789.   Tenancy  at  will  may  he  terminated  by  notice. 

Sec  789.  A  tenancy  or  other  estate  at  will,  however  created,  may  be  termi- 
nated by  the  landlord's  giving  notice  in  writing  to  the  tenant,  in  the  manner 

(a)  The  original  section  did  not  have  the  words  "and         (6)  The  original  section  did  not  have  the  words  "pro. 
all  life  estates  subsequent  to  those  of  persons  in  being     vided  for  in  the  jirecediug  sectiou." 
are  void." 

685 


5789-5802  CIVIL  CODE. 

IDrescribed  h\  section  11G2  of  the  Code  of  Civil  Procedure,  to  remove  from  the 
premises  within  a  period  of  not  less  than  one  month,  to  be  specified  in  the 
notice. 

5790.  £[ft:ct  of  notice. 

Sec.  790.  After  such  notice  has  been  served,  and  the  period  specified  by  such 
notice  has  expired,  but  not  before,  the  landlord  may  re-enter,  or  proceed  accord- 
ing to  law  to  recover  possession. 

5791.  la'-enlrij,  ichen  and  how  to  he  made. 

Sec.  791.  Whenever  the  right  of  re-entry  is  given  to  a  grantor  or  lessor  in  any 
gi-ant  or  lease,  or  otherwise,  such  re-entry  may  be  made  at  any  time  after  the 
ri"ht  has  accrued,  upon  three  days'  notice,  as  provided  in  sections  llGl  and 
11G2,  Code  of  Civil  Procedure. 

5792.  Summary  proceedings  in  certain  cases  provided  for . 

Sec.  792.  Summary  proceedings  for  obtaining  possession  of  real  property 
forcibly  entered,  or  forcibly  and  unlawfully  detained,  are  provided  for  in  sec- 
tions 1159  to  1175,  both  inclusive,  of  the  Code  of  Civil  Procedure. 

5793.  Xotice  not  nrcessai-y  be/ore  action. 

Sec.  793.  An  action  for  the  possession  of  real  property  leased  or  granted, 
with  a  right  of  re-entr}^,  may  be  maintained  at  any  time,  in  the  district  court, 
after  the  right  to  re-enter  has  accrued,  without  the  notice  prescribed  in  section 
791. 

CHAPTER  III. 

SERVITUDES. 

5801.  Servitudes  attached  to  land. 

Sec.  801.  The  following  land  burdens,  or  servitudes  upon  land,  may  be  at- 
tached to  other  land  as  incidents  or  appurtenances,  and  are  then  called  ease- 
ments: 

1.  The  right  of  i^asture; 

2.  TLie  right  of  fishing; 

3.  The  right  of  taking  game; 

4.  The  right  of  wa}'; 

5.  The  right  of  taking  Nvater,  wood,  minerals,  and  other  things; 
G.  The  right  of  transacting  business  upon  land; 

7.  The  right  of  conducting  lawful  sports  upon  land; 

8.  The  right  of  receiving  air,  light,  or  heat  from  or  over,  or  discharging  the 
Bame  upon  or  over  land; 

9.  Tlie  right  of  receiving  water  from  or  discharging  the  same  upon  land; 

10.  The  right  of  flooding  land; 

11.  The  right  of  having  water  flow  without  diminution  or  disturbance  of  any 
kind; 

12.  The  riglit  of  using  a  wall  as  a  party  wall; 

13.  Tlie  right  of  receiving  more  than  natural  support  from  adjacent  land  or 
things  affi.\ed  thereto; 

14.  The  right  of  having  the  whole  of  a  division  fence  maintained  by  a  coter- 
minous owner; 

15.  Tlie  right  of  having  public  conveyances  stopped,  or  of  stopping  the  same 
on  land; 

10.  Tlie  right  of  a  seat  in  church; 
17.  Tlie  right  of  burial. 

5802.  Servitudes  not  attached  to  land. 

Sec.  802.  The  following  land  burdens,  or  servitudes  upon  laud,  may  be 
granted  and  lield,  though  not  attached  to  land: 

G8G 


REAL  PROPERTY.  5802-5811 

1.  The  right  to  pasture,  and  of  fishing  and  taking  game; 

2.  The  right  of  a  seat  in  church; 

3.  The  right  of  burial; 

4.  The  right  of  taking  rents  and  tolls; 

5.  The  right  of  Avay; 

C.  The  right  of  taking  water,  wood,  minerals,  or  other  things.  [Amendmeitt, 
approved  March  30,  1874;  Amendments  1873-4,  219;  took  effect  July  1,  1874.<'" 

5803.  Designation  of  estates. 

Sec.  803.  The  land  to  which  an  easement  is  attached  is  called  the  dominant 
tenement;  the  land  upon  which  a  burden  or  servitude  is  laid  is  called  the  ser- 
vient tenement. 

5804.  By  ivhom  grantdble. 

Sec.  804.  A  servitude  can  be  created  only  by  one  who  has  a  vested  estate  in 
the  servient  tenement. 

5805.  By  whom  held. 

Sec.  805.  A  servitude  thereon  cannot  be  held  by  the  owner  of  the  servient 
tenement. 

5808.  Extent  of  servitudes. 

Sec.  80G.  The  extent  of  a  ser^dtude  is  determined  by  the  terms  of  the  grant, 
or  the  nature  of  the  enjoyment  by  which  it  was  acquired. 

5807.  Apportioning  easements. 

Sec  807.  In  case  of  partition  of  the  dominant  tenement  the  burden  must  be 
apportioned  according  to  the  division  of  the  dominant  tenement,  but  not  in  such 
a  way  as  to  increase  the  burden  upon  the  servient  tenement. 

5808.  Rights  of  oivner  of  future  estate. 

Sec.  808.  The  owner  of  a  future  estate  in  a  dominant  tenement  may  use  ease- 
ments attached  thereto  for  the  purpose  of  viewing  waste,  demanding  rent,  or 
removing  an  obstruction  to  the  enjoyment  of  such  easements,  although  such 
tenement  is  occupied  by  a  tenant. 

5809.  Actions  by  owner  and  occupant  of  dominant  tenement. 

Sec.  809.  The  owner  of  any  estate  in  a  dominant  tenement,  or  the  occupant 
of  such  tenement,  may  maintain  an  action  for  the  enforcement  of  an  easement 
attached  thereto. 

5810.  Actions  by  owner  of  servient  tenement. 

Sec.  810.  The  owner  in  fee  of  a  servient  tenement  may  maintain  an  action 
for  the  possession  of  the  land,  against  any  one  unlawfully  possessed  thereof, 
though  a  servitude  exists  thereon  in  favor  of  the  public. 

5811.  How  extinguished. 

Sec  811.  A  servitude  is  extinguished: 

1.  B3-  the  vesting  of  the  right  to  the  servitude  and  the  right  to  the  servient 
tenement  in  the  same  person; 

2.  By  the  destruction  of  the  servient  tenement; 

3.  B}^  the  performance  of  any  act  upon  either  tenement,  by  the  owner  of  the 
servitude,  or  with  his  assent,  which  is  incompatible  with  its  nature  or  exer- 
cise; or, 

4.  When  the  servitude  was  acquired  by  enjoyment,  by  disuse  thereof  by  the 
owner  of  the  servitude  for  the  period  prescribed  for  acquiring  title  by  enjoy- 
ment. 

(a)  The  original  section  did  not  have  the  words,  "  to  pasture,  and  "  in  the  first  subdivision,  and  did  not  have 
the  sixth  subdivision, 

687 


5818-5823  CR'IL  CODE. 

TITLE    III. 

Jliijljt^  m\h  (!)bii9atioi!0  of  (Dinners. 

Chapter   I.  Rights  of   Owners 5818 

II.  OBLia.vrioNS  of  Owners i 5840 

CHAPTEE  I. 

EIGHTS   OF   OWNERS. 

Article  I.  Incidents  of  Owneeship. 5818 

II.  BuCN-DAKIES , 5829 

ARTICLE  I. 

INCIDENTS    OF    OWNERSHIP. 

5818.  Fiiqhls  of  tenant  for  life. 

Sec.  818.  The  owner  of  a  life  estate  may  use  the  land  in  the  same  manner  as 
the  owner  of  a  fee  simple,  except  that  he  must  do  no  act  to  the  injury  of  the 
inheritance. 

5819.  Bifilds  of  tenant  for  years,  etc. 

Sec.  819,  A  tenant  for  years  or  at  will,  unless  he  is  a  wrongdoer  by  holding 
over,  may  occupy  the  buildings,  take  the  annual  products  of  the  soil,  work 
mines  and  quarries  open  at  the  commencement  of  his  tenancy. 

5820.  Same. 

Sec  820.  A  tenant  for  years  or  at  will  has  no  other  rights  to  the  property 
than  siich  as  are  given  to  him  by  the  agreement  or  instnimeut  by  which  his 
tenancy  is  acquired,  or  by  the  last  section. 

5821.  Pdyhis  of  grantees  of  rents  and  reversions. 

Sec  821.  A  person  to  whom  any  real  property  is  transferred  or  devised,  upon 
which  rent  has  been  reserved,  or  to  whom  any  such  rent  is  transferred,  is  en- 
titled to  the  same  remedies  for  recovery  of  rent,  for  non-performance  of  any  of 
the  terms  of  the  lease,  or  for  any  waste  or  cause  of  forfeiture,  as  his  grantor  or 
devisor  might  have  had. 

5822.  Liability  of  assignee  of  lessee. 

Sec.  822,  AVhatever  remedies  the  lessor  of  any  real  property  [has]  against  his 
immediate  lessee  for  the  brea/;h  of  any  agreement  in  the  lease,  or  for  recoveiy 
of  the  possession,  he  has  against  the  assignees  of  the  lessee,  for  any  cause  of 
action  •accruing  while  they  are  such  assignees,  except  where  the  assignment  is 
made  by  way  of  security  for  a  loan,  and  is  not  accomi^anied  by  possession  of 
the  premises.  [Amendment,  approved  Mardi  30,  1874;  Amendments  1873-4,  219; 
took  effect  July  1,  1874,* "> 

5823.  Rights  of  lessees  and  their  assignees,  etc. 

Sec,  823,  "Whatever  remedies  the  lessee  of  any  real  property  may  have 
against  his  immediate  lessor,  for  the  breach  of  any  agreement  in  the  lease,  he 
may  have  against  the  assigns  of  the  lessor,  and  the  assigns  of  the  lessee  may 
have  againt  the  lessor  and  his  assigns,  except  upon  covenants  against  incum- 
brances or  relating  to  the  title  or  possession  of  the  premises. 

(a)  TL<:  '■ri^'iiial  htction  did  not  liave  the  lufct  clause  commencing  with  the  words  "  for  any  cause  of  action." 

688 


KEAL  PEOPERTY.  5824-5832 

5824.  Remechj  on  leases  for  life. 

Sec.  824.  Pieut  due  upon  a  lease  for  life  may  be  recovered  in  the  same  manner 
as  upon  a  lease  for  years. 

5825.  Bent  dependent  on  life. 

Sec.  825.  Rent  dependent  on  the  life  of  a  person  may  be  recovered  after  as 
well  as  before  his  death. 

5826.  Remedy  of  reversioners ,  etc. 

Sec.  826.  A  person  having-  an  estate  in  fee,  in  remainder  or  reversion,  may 
maintain  an  action  for  any  injury  done  to  the  inheritance,  notwithstanding  an 
intervening  estate  for  life  or  years,  and  although,  after  its  commission,  his  estate 
is  transferred,  and  he  has  no  interest  in  the  property  at  the  commencement  of 
the  action. 

5827.  Terms  of  lease  may  he  changed  by  notice. 

Sec  827.  In  all  leases  of  lands  or  tenements,  or  of  any  interest  therein,  from 
month  to  month,  the  landlord  may,  upon  giving  notice  in  writing  at  least  fifteen 
days  before  the  expiration  of  the  month,  change  the  terms  of  the  lease,  to  take 
effect  at  the  expu-ation  of  the  month.  The  notice,  when  served  upon  the  tenant, 
shall  of  itself  operate  and  be  effectual  to  create  and  establish,  as  a  part  of  the 
lease,  the  terms,  rent,  and  conditions  specified  in  the  notice,  if  the  tenant  shall 
continue  to  hold  the  premises  after  the  expiration  of  the  month.  [New  section, 
approved  Ilarch  30,  1874;  Amendments  1873-4,  220;  took  effect  July  1,  1874. 

ARTICLE  II. 

boundaries. 

5829.  Rights  of  owner. 

Sec.  829,  The  owner  of  the  land  in  fee  has  the  right  to  the  surface  and  to 
everything  permanently  situated  beneath  or  above  it. 

5830.  Boundaries  by  ivater. 

Sec  830.  Except  where  the  grant  under  Avhich  land  is  held  indicates  a  different 
intent,  the  owner  of  the  upland,  Avhen  it  borders  on  tide  water,  takes  to  ordi- 
nary high  water  mark;  when  it  borders  ujDon  a  navigable  lake  or  stream,  where 
there  is  no  tide,  the  owner  takes  to  the  edge  of  the  lake  or  stream,  at  low  water 
mark;  when  it  borders  ujDon  any  other  water,  the  owner  takes  to  the  middle  of 
the  lake  or  stream.  [Aynendment,  approved  March  30, 1874;  Amendments  1873-4, 
220;  took  eff'ect  July  1,  1874,^^' 

5831.  Boundaries  by  ways. 

Sec  831.  An  owner  of  land  bounded  by  a  road  or  street  is  presumed  to  own 
to  the  centre  of  the  way,  but  the  contrary  may  be  shown. 

5832.  Lateral  and  subjacent  support,  right  of  owner  to  excavate. 

Sec  832.  Each  coterminous  owner  is  entitled  to  the  lateral  and  subjacent 
support  which  his  land  receives  from  the  adjoining  land,  subject  to  the  right  of 
the  owner  of  the  adjoining  land  to  make  proper  and  usual  excavations  on  the 
same  for  purjDOses  of  construction,  on  using  ordinary  care  and  skill,  and  taking 
reasonable  precautions  to  sustain  the  land  of  the  other,  and  giving  previous 
reasonable  notice  to  the  other  of  his  intention  to  make  such  excavations. 
[Amendment,  approved  March  30,  1874;  Amendments  1873-4,  221;  took  effect 
July  1,  1874.^^' 

(a)  Original  section:  water,  the  owner  takes  to  the  middle  of  the  lake  or 

Sec.  830.    When  land  borders  upon  tide  water,  or  stream, 

upon  water  which  constitutes  an  exterior  bouudai-y  of  (a)   Original  section: 

the  state,  the  owner  of  the  upland  takes  to  high  water  Sec.  832.  Each  coterminous  owner  is  entitled  to  the 

mark;  when  it  borders  upon  a  navigable  lake  where  lateral  and  subjacent  support  which  his  laud  by  nature 

there  is  no  tide,  the  owner  takes  to  the  edge  of  the  lake  receives  from  the  laud  of  the  other, 
at  low  water  naark;  when  it  borders  upon  any  other 

44  689 


5833-5852  CIVIL  CODE. 

5833.  Trees  tchose  trunks  are  iL-liolhj  on  land  of  one. 

Sec.  833.  Trees  whose  trunks  stand  wholly  upon  the  land  of  one  owner 
belong  exclusively  to  him,  although  their  roots  grow  into  the  laud  of  another. 

5834.  Line  trees. 

Sec.  83-4.  Trees  whose  trunks  stand  partly  on  the  land  of  two  or  more  coter- 
minous owners,  belong  to  them  in  common. 

CHAPTEE  II. 

OBLIGATIONS  OF   OWNERS. 

5840.  Duties  of  tenant  for  life. 

Sec.  840.  The  owner  of  a  life  estate  must  keep  the  buildings  and  fences  in 
rejmir  from  ordinary  waste,  and  must  pay  the  taxes  and  other  annual  charges, 
and  a  just  proportion  of  extraordinary  assessments  benefiting  the  whole  inher- 
itance. 

5841.  Monuments  and  fences. 

Sec.  8-41.  Coterminous  owners  are  mutually  bound  equally  to  maintain: 

1.  The  boundaries  and  monuments  between  them; 

2.  The  fences  between  them,  unless  one  of  them  chooses  to  let  his  land  lie 
without  fencing;  in  which  case,  if  he  afterwards  incloses  it,  he  must  refund  to 
the  other  a  just  projjortion  of  the  value,  at  that  time,  of  any  division  fence 
made  b}'  the  latter. 

[In  a  number  of  the  counties  there  are  special  laws  concerning  division  and 
partition  fences;  and  in  so  far  as  they  are  in  force  they  modify  the  above  pro- 
visions.    See  post,  15,308  to  15,335. J 


TITLE   lY. 

5847.    What  uses  and  trusts  may  exist. 

Sec.  84:7.  Uses  and  trusts  in  relation  to  real  j^roperty  are  those  only  w^hich 
are  specified  in  this  title. 

[Sees.  848,  849,  850  and  851^"'  were  repealed  by  act  approved  March  30,  1874; 
1874;  Amendments  1873-4,  221;  took  effect  July  1,  1874.] 

5852.   Trust  to  be  in  writing. 

Six.  852.  No  trust    in   relation  to  real  property  is  valid  unless  created  or 
declared: 

1,  By  a  written  instrument,  subscribed  by  the  trustee,  or  by  his  agent  thereto 
authorized  by  writing; 

2,  By  the  instrument  under  which  the  trustee  claims  the  estate  affected;  or, 

3,  By  operation  of  law. 

(a)  llepealcd  KfctionK:  Rkc.  850.  Everj' (IJRposition  of  real  proporty.  whether 

8kc.  8H.  Ever}' I'"'™""  who,  by  virtue  of  any  transfer  by  tninsl'er  or  will,  must  bo  m.adc  directly  to  the  per- 

or  (ieviw-.,  in  entitled  to  tbe  actiiiil  poHKCKsion  of  real  Bon  iu  whom  tlie  right  to  the  iiosFcKsion  mid  prolitB  is 

propr-rty,   and   the   n-ciipt  of    the   rintK    and   profits  intended  to*be  vestinl,  and  not  to  any  other,  to  the  use 

then-ot,  IK  to  be  deewjeil  to  havi-  a  legal  ehtiiti-  therein,  of  or  iu  trust  for  such  person;  and  if  made  to  any  per- 

of  the  Haine  quality  anrl  duration,  and  subject  to  the  son,  to  the  nee  of  or  in  trust  for  another,  no  cstnte  or 

name  conditiouK.  as  his  beneficial  interest.  interest  vests  in  the  trustee;  but  he  must  execute  a  re- 

Skc.  810.  The  last  section  does  not  divest  the  estate  lease  of  the  projjerty  to  the  beneficiary  on  demand,  the 

of  any  trustee  in  a  trust,  where  the  title  of  such  trustee  latter  jjaying  the  expense  thereof. 

is  not  mi  rely  nominal,  but  is  (dni]i-<t<-d  witli  some  Sec.  8.'>1.  The  preceding  se(ti<ins  of  this  title  do  not 

power  of   actual  disposition  or  management   in  rela-  extend  to  trusts  arising  or  resulting  by  implicjitiDii  of 

tion  to  the  real  iiroperty  which  ib  the  subject  of  the  law,  nor  i)revent  or  iiffeit  the  creation  of  such  express 

trubt.  trusts  as  are  hereinalter  authorized  and  defmed. 

690 


EEAL  PROPERTY.  5853-5859 

5853.  RpMilting  trust,  lohen  presumed. 

Sec.  853.  When  a  transfer  of  real  property  is  made  to  one  person,  and  the 
consideration  therefor  is  paid  by  or  for  another,  a  trust  is  presumed  to  result 
in  favor  of  the  person  by  or  for  whom  such  payment  is  made.  [Amendment,  ap- 
proved March  30,  1874;  Amendments  1873-4,  221;  took  effect  July  1,  1874.<''' 

[Sees.  854  and  855*"'  were  repealed  by  act  approved  March  30,  1874;  Amend- 
ments 1873-4,  221;  took  effect  July  1,  1874.] 

5856.  Purchasers  protected. 

Sec.  856.  No  implied  or  resulting  trust  can  prejudice  the  rights  of  a  purchaser 
or  incumbrancer  of  real  property  for  value  and  without  notice  of  the  trust. 

5857.  Express  trusts,  for  what  purposes  created. 

Sec.  857.  Express  trusts  may  be  created  for  any  of  the  following  purposes: 

1.  To  sell  real  property,  and  apply  or  dispose  of  the  proceeds  in  accordance 
with  the  instrument  creating  the  trust; 

2.  To  mortgage  or  lease  real  property  for  the  benefit  of  annuitants  or  other 
legatees,  or  for  the  purpose  of  satisfying  anj'  charge  thereon; 

3.  To  receive  the  rents  and  profits  of  real  property,  and  pay  them  to  or  apply 
them  to  the  use  of  any  person,  whether  ascertained  at  the  time  of  the  creation 
of  the  trust  or  not,  for  himself  or  for  his  family,  during  the  life  of  such  person, 
or  for  any  shorter  term,  subject  to  the  rules  of  Title  II  of  this  Part;  or, 

4.  To  receive  the  rents  and  profits  of  real  property,  and  to  accumulate  the 
same  for  the  purposes  and  within  the  limits  prescribed  b}'  the  same  title. 
[Amendment,  ajjpi-oved  3Ia7-ch  30,  1874;  Amendments  ISTS-A,  221;  look  effect  July 
1,  1874.*^^ 

[Sec.  858,  as  originally  passed,***'  was  repealed  by  act  approved  March  30, 
1874  (Amendments  1873-4,  222;  took  effect  July  1,  1874),  and  a  new  section 
substituted  in  its  place,  as  follows:] 

5858.  Powers,  when  deemed  part  of  the  security. 

Sec  858.  Where  a  power  to  sell  real  property  is  given  to  a  mortgagee,  or 
other  incumbrancer,  in  an  instrument  intended  to  secure  the  payment  of  money, 
the  power  is  to  be  deemed  a  part  of  the  security,  and  vests  in  any  j^erson  who, 
by  assignment,  becomes  entitled  to  the  money  so  secured  to  be  j^iaid,  and  may 
be  executed  by  him  whenever  the  assignment  is  duly  acknowledged  and  re- 
corded. [Neiv  section,  approved  March  30,  1874;  Amendments  1873-4,  222;  took 
effect  July  1,  1874. 

5859.  Profits  of  land  liable  to  creditors  in  certain  cases. 

Sec.  859.  Where  a  trust  is  created  to  receive  the  rents  and  profits  of  real 
property,  and  no  valid  direction  for  accumulation  is  given,  the  surplus  of  such 
rents  and  profits,  beyond  the  sum  that  may  be  necessary  for  the  education  and 
support  of  the  person  for  whose  benefit  the  trust  is  created,  is  liable  to  the 
claims  of  the  creditors  of  such  person,  in  the  same  manner  as  jpersonal  property 
which  cannot  be  reached  by  execution. 

<a)  Original  section:  fer  in  Lis  own  name,  without  the  consent  or  knowledge 

Sec.  85y.  where  a  transfer  of  real  property  Is  made  of  the  person  paying  the  consideration;  nor,  2.  To  cases 

to  one  person,  and  the  consideration  therefor  is  paid  where  the  gr.iutee,  in  violation  of  a  trust,  purchased 

by  or  for  another,  no  use  or  trust  results  in  favor  of  the  the  real  property  so  transferred  with  property  belong- 

person  by  or  for  whom  such  payment  is  made;  but  the  ing  to  another  person. 

title  vests  in  the  grantee,  subject  only  to  the  provisions  (c)  The  original  section  differed  in  the  first  subdl- 

of  the  next  two  sections.  vision,  which  reid:  "1.  To  sell  real  property  for  the 

(6)  Repealed  sections:  benefit  of  creditors."    In  the  second  subdivision  it  had 

Sec.  854.  Every  such  transfer  as  is  described  in  the  the  word  "  sell  "  before  the  word  "  mortgage." 

last  section  is  presumed  to  be  fraudulent  as  agaiust  the  (d)  Repealed  section: 

creditors,  at  that  time,  of  the  person  ijaying  the  con-  Sec.  Ha.i.  A  devise  of  real  property  to  executors  or 

eideration;  and  where  a  fraudulent  intent  is  not  dis-  other  trustees,  to  be  sold  or  mortgaged,  where  the 

proved,  a  trust  results  in  favor  of  such  ci-editors  to  the  trustees  are  not  also  empowered  to  receive  the  rents 

extent  necessary  to  satisfy  their  just  demands.  and  profits,  vests  no  estate  in  them;  but  the  trust  is 

Sec.  85.5.    Section  853   does  not  api)ly:   1.  To   cases  valid  as  a  power  in  trust, 
■where  the  grantee  took  the  grant  as  an  absolute  trans- 

691 


oS3d-58G9  CITIL  CODE. 

[Sec.  8G0,  as  originally  passed/'^  was  repealed  by  act  approved  Marcli  30, 
1874  (Amendments  1873-4,  222;  took  effect  July  1,  1874),  and  a  new  section 
substituted  in  its  place,  as  follows:] 

5860.  Poivers,  execution  of. 

Sec.  860.  Where  a  power  is  vested  in  several  persons,  all  must  unite  in  its 
execution;  but,  in  case  any  one  or  more  of  them  is  dead,  the  power  may  be 
executed  by  the  sm-vivor  or  sur%-ivors,  unless  otherwise  prescribed  by  the  terms 
of  the  power.  [New  section,  ajyproved  March  30,1874;  Amendmental^l^-^:,  222; 
took  effect  Juhj  1,  1874. 

[Sec  8G1  and  802*"'  were  repealed  by  act  approved  March  30,  1874;  Amend- 
ments 1873-4,  222;  took  effect  July  1,  1874.] 

5863.  Trustees  of  express  trusts  to  have  whole  estate. 

Sec  8G3,  Except  as  hereinafter  otherwise  provided,  every  express  trust  in 
real  pi'operty,  valid  as  such  in  its  creation,  vests  the  whole  estate  in  the  trus- 
tees, subject  only  to  the  execution  of  the  trust.  The  beneficiaries  take  no 
estate  or  interest  in  the  projierty,  but  may  enforce  the  performance  of  the  trust. 

5864.  Author  of  trust  may  devise,  etc. 

Sec.  8G4.  Notwithstanding  anything  contained  in  the  last  section,  the  author 
of  a  trust  may,  in  its  creation,  prescribe  to  whom  the  real  property  to  which 
the  trust  relates  shall  belong,  in  the  event  of  the  failure  or  termination  of  the 
trust,  and  may  transfer  or  devise  such  property,  subject  to  the  execution  of  the 
tmst. 

5865.  Title  of  grantor  of  trust  property. 

Sec  8G5.  The  gi-antee  or  devisee  of  real  jDroperty  subject  to  a  trust  acquii-es 
a  legal  estate  in  the  property,  as  against  all  persons  except  the  trustees  and 
those  lawfully  claiming  under  them. 

5866.  Interests  remaining  in  grantor  of  express  trust. 

Sec  8G6.  Where  an  express  trust  is  created  in  relation  to  real  property,  every 
estate  not  embraced  in  the  trust,  and  not  otherwise  disposed  of,  is  left  in  the 
author  of  the  ti-ust  or  his  successors. 

5867.  Beneficiary  may  he  restrained  from  disposing  of  interest. 

Sec  867.  The  beneficiary  of  a  trast  for  the  recei2:)t  of  the  rents  and  profits 
of  real  property,  or  for  the  jjayment  of  an  annuity  out  of  such  rents  and  profits, 
may  be  restrained  from  disposing  of  his  interest  in  such  trust,  during  his  life 
or  for  a  tenn  of  years,  by  the  instrument  creating  the  trust.  [Amejidment, 
aiyproved  March  30,  1874;  Amendments  1873-4,  223;  took  effect  July  1,  1874.<'=> 

I  Sec  868""  was  repealed  by  act  approved  March  30,  1874;  Amendments 
1873-4,  223;  took  effect  July  1,  1874.] 

536*9.  Express  trust,  lolien  deemed  absolute  grant  in  favor  of  purchasers  from 
trustees. 

Sec  869.  Where  an  express  trust  is  created  in  relation  to  real  property,  but 
is  not  contained  or  declared  in  the  grant  to  the  trustee,  or  in  an  instrument 
signed  by  him,  and  recorded  in  the  same  office  with  the  grant  to  the  trustee, 

(n)  Reiieiilfd  Bcctlon:  power  In  trust,  the  ronl  property  to  wliich  the  truBt 

Skc.  H((i.  ANhi-re  an  expreKS  tnist  in  relation  to  real  reiiitcB  reiiuiiiiR  in.  or  pasgiis  by  succcBSiou  to,  the  per- 

propirty  m  <Ti-Bt4<l  for  any  pjirpohe  not  enumerated  in  sons  otherwise  entitled,  Bubject  to  the  execution  of  the 

the  preceding  He<ti<pnH.  Bucli  trust  vests  \u>  estate  in  the  trust  as  a  power  in  trust. 

trustees;  but  the  tnist.  if  direrting  or  authorizing  the  (c)    Original  Beetion: 

perfornianie  oJ  any  a.  t  which  may  be  lawfully  per-  Skc.  «(i7.  The  benehciary  of  a  trust  for  the  receipt  of 

forined  undi-r  a  power,  is  valid  as  a  power  in  trust,  the  rents  and  iirofits  of  real  property  cannot  transfer 

subject  to  the  jirovisions  in  relation   to  such  powerB  or  in  anv  manner  dispose  of  his  interest  in  Buch  truBt. 

contained  in  TiUe  V  of  this  Part.  (d)   Kepeoled  section: 

(fc)  Kepealed  BCctions:  Sec.  «0K.  The  beneficiary  of  a  trust  for  the  payment 

SEf.  «tll.  Nothing  in  this  title  prevents  the  creation  of  an  annuity  uni  of  the  rents  and  i>rofits  of  real  prop- 

of  a  power  in  trust  for  any  of  the  purposes  for  which  erty,  or  of  a  sum  in  groBB,  can  dispose  of  his  interest 

an  express  trust  may  be  created.  in  such  trust. 
Sec.  862.  In  every  case  where  a  trust  is  valid  as  a 

692 


PERSONAL  PROPERTY.  5869-594G 

such  grant  must  be  deemed  absolute  in  favor  of  purchasers  from  such  trustee 
without  notice,  and  for  a  valuable  consideration.  [Amendment,  approved 
March  30,  1874;  Amendments  1873-4,  223;  took  effect  July  1,  1874.^"' 

5870.  Certain  sales,  etc.,  by  trustees,  void. 

Sec.  870.  Where  a  trust  in  relation  to  real  property  is  expressed  in  the  insti-u- 
ment  creating-  the  estate  every  transfer  or  other  act  of  the  trustees,  in  contra- 
vention of  the  trust,  is  absolutely  void. 

5871.  When  estate  of  trustee  to  cease. 

Sec  871.  When  the  purpose  for  which  an  express  trust  was  created  ceases, 
ihe  estate  of  the  trustee  also  ceases. 


[TITLE    y.] 

[iloiiicr0.] 


[This  entire  title,  on  the  subject  of  "  Powers,"  embracing  sections  from  878 
to  940,  inclusive,  was  repealed  by  act  approved  March  30,  1874;  Amendments 
1873-4,  223;  took  effect  July  1,  1874.  On  account  of  the  unimportance,  under 
the  circumstances,  of  these  repealed  sections,  as  well  as  on  account  of  their 
length,  they  are  omitted  from  the  foot-notes;  and  the  inquirer,  who  may  desire 
to  consult  them,  is  referred  to  the  Civil  Code  as  jDublished  in  1872.] 


I>^IIT    III. 

PERSONAL    OR   MOVABLE   PROPERTY. 

Title   I.  Personal  Property  in  General  5946 

11.  Particular  Kinds  of  Personal  Property 5953 


TITLE  I. 

|)cr$0nal  Jliopcrtij  in  (BcncraL 

5946.   By  tchat  law  governed. 

Sec.  946.  If  there  is  no  law  to  the  contrary  in  the  place  where  personal 
property  is  situated,  it  is  deemed  to  follow  the  person  of  its  owner,  and  is 
governed  by  the  law  of  his  domicile.  [Re-enactment,  approved  March  9,  1876; 
Amendments  1875-6,  78;  took  effect  sixtieth  day  after  passage. 

[The  foregoing  section  may  have  been  repealed  by  act  ajiproved  March  80, 
1874;  Amendments  1873-4,  223.  The  section  containing  the  repeal,  if  there 
was  any  repeal,  referred  to  the  pre\dous  title,  but  apparently  treated  this  section 
as  a  part  of  such  title.     The  repealing  section  was  as  follows: 

"  Sec  123.  Title  V,  of  Part  III,  of  Division  II,  on  Powers  of  the  Civil  Code, 
embracing  sections  of  said  code  from  section  878  to  946,  inclusive,  is  repealed." 

(a)   Original  Bection:  absolute  in  favor  of  the  PubBoquent  creditors  of  the 

Sec.  869.  Where  an  express  trust  is  created  in  rela-  trustees,  not  having  notice  of  the  trust,  and  in  favor  of 

tion  to  real  property,  but  is  not  contained  or  declared  purchasers  from  such  trustees  without  notice,  and  for 

in  the  grant  to  the  trustee,  such  grant  must  be  deemed  a  valuable  consideration. 

693 


5946-59C1  CIVIL  CODE. 

It  ^Yill  be  observed  that  section  940  was  not  embraced  in  the  title  referred  to; 
that  it  was  not  upon  the  subject  of  Powers,  and  that  the  repeal,  if  any,  was 
effected  by  the  use  of  the  word  "  inclusive."  However  this  may  have  been,  the 
section  was  re-enacted  by  act  approved  March  9,  1870;  Amendments  1875-6, 
78;  took  effect  sixtieth  day  after  passage.] 

[Sec  947  ^"^  was  repealed  by  act  approved  March  30,  1874;  Amendments 
1873-4,  223;  took  effect  July  1,  1874.J 


TITLE   II. 

Particular  BiuD0  of  Pergonal  IJroiicrtij. 

Chapter   I.  Things  in  Action 5953 

II.  Shipping 5960 

III.  Products  of  the  Mind    5980 

IV.  Other  kinds  of  Personal  Property 5991 

CHAPTEK   I. 

THINGS   IN   ACTION. 

5953.  Thing  in  action  defined. 

Sec.  953.  A  thing  in  action  is  a  right  to  recover  money  or  other  personal 
property  by  a  judicial  proceeding.  [Amendment,  approved  31arch  30,  1874 ; 
Amendments  1873-4,  223;  took  effect  July  1,  1874.'''> 

5954.  Transfer  and  survivorship. 

Sec.  954.  A  thing  in  action,  arising  out  of  the  violation  of  a  right  of  prop- 
erty, or  out  of  an  obligation,  may  be  transferred  by  the  owner.  Upon  the 
death  of  the  owner  it  passes  to  his  personal  representatives,  except  where,  in 
the  cases  i:)rovided  in  the  Code  of  Civil  Procedure,  it  passes  to  his  devisees  or 
successor  in  office. 

CHAPTEK  II. 

SHIPPING. 

Akticle  I.  Genkbal  Pbotisions 5960 

II.  RcLEs  OF  Navigation 5970 

AKTICLE  I. 

GENERAL    PROVISIONS. 

5960.  Ship,  shif>ping  terms  defined. 

Skc.  900.  The  term  ship,  or  shipping,  when  used  in  this  code,  includes  steam- 
boats, sailing  vessels,  canal  boats,  barges,  and  every  structure  adapted  to  be 
navigated  from  place  to  place  for  the  transi:)ortation  of  merchandise  or  persons. 
[Amendment,  approved  March  30,  1874;  Amendments  1873-4,  224;  took  effect 
Jul'/  1,  1874.<'> 

5961.  Aprpxirtennnces  and  erpiipments. 

Sec.  961.  All  things,  belonging  to  the  owners,  which  are  onboard  a  ship,  and 
are  connected  with  its  proper  use,  for  the  objects  of  the  voyage  and  adventure 
in  which  the  ship  is  engaged,  are  deemed  its  appurtenances. 

{n)  Rf-pealerl  Bcrtlon:  (i)   The  originHl  Bpction,  instead  of  "  money  or  other 

Sr.f.  'H'l.  When-  iin<-  hHH  the  pnprnt  «nrl  nnnOirr  tho  perHonnl  property. "  had  the  word  "  BOinething." 

future  int«-r<-Ht  In   »  \h\nv.  i>< n-nnHi.  i,n.|  th<-  tiling  ifl  (c)   Original  section: 

p<-rihh«1)le.  the  latter  rnay  nrjiiin  it  t<.  In-  Knld.  imd  tlio  Sec.  9()().  A  ship  iB  any  Btnieture  fitted   for  naviga- 

proie«dB  Invested  for  the  Ij.  iicllt  of  both  jmrtieh,  ae-  tion.     Every  kiud  of  ship   is  included  in  the   term 

cording  to  their  reppertivH  inti  ri-htK:  ixcipt  in  caKe  of  "Bhipping." 

a  thing  Bpetially  appropriated  to  a  particular  UBe. 

694 


PERSONAL  PROPERTY.  59G2-5970 

5962.  Foreign  and  domestic  navigation. 

Sec.  9G2.  Ships  are  engag-ed  either  in  foreign  or  domestic  navigation,  or  in 
the  fisheries.  Ships  are  engaged  in  foreign  navigation  when  passing  to  or  from 
a  foreign  countr}^;  and  in  domestic  navigation,  when  passing  from  place  to  place 
within  the  United  States. 

5963.  Foreign  and  domcHlic  ships  distinguished. 

Sec.  963.  A  ship  in  the  port  of  a  state  to  which  it  belongs  is  called  a  domes- 
tic ship;  in  another  port  it  is  called  a  foreign  ship. 

5964.  Several  owners. 

Sec.  9G4.  If  .a  ship  belongs  to  several  persons,  not  partners,  and  they  differ 
as  to  its  use  or  repair,  the  controversy  may  be  determined  by  any  court  of  com- 
petent jurisdiction. 

5985.   Owner  for  voyage. 

Sec  965.  If  the  owner  of  a  ship  commits  its  possession  and  navigation  to 
another,  that  other,  and  not  the  owner,  is  responsible  for  its  repairs  and  sup- 
plies. 

5966.  Registry,  etc. 

Sec.  966.  The  registry,  enrollment,  and  license  of  ships  are  regulated  by  acts 
of  congress. 

ARTICLE  II. 

EDLES    of    NA\^GATI0N. 

5970.   Collisions. 

Sec  970.  In  the  case  of  ships  meeting,  the  following  rules  must  be  observed, 
in  addition  to  those  prescribed  by  that  part  of  the  Political  Code  which  relates 
to  navigation: 

Jtules  as  to  shij^s  meeting  each  other. 

1.  Whenever  any  ship,  whether  a  steamer  or  sailing  ship,  proceefding  in  one 
direction,  meets  another  ship,  whether  a  steamer  or  sailing  ship,  proceeding  in 
another  direction,  so  that  if  both  ships  were  to  continue  their  respective  courses 
they  would  pass  so  near  as  to  involve  the  risk  of  a  collision,  the  helms  of  both 
ships  mvist  be  put  to  port  so  as  to  pass  on  the  port  side  of  each  other;  and  this 
rule  applies  to  all  steamers  and  all  sailing  sliips,  whether  on  the  port  or  star- 
board tack,  and  whether  closehauled  or  not,  except  where  the  circumstances 
of  the  case  are  such  as  to  render  a  departure  from  the  rule  necessary  in  order  to 
avoid  immediate  danger,  and  subject  also  to  a  due  regard  to  the  dangers  of 
navigation,  and,  as  regards  sailing  ships  on  the  starboard  tack  closehauled,  to 
the  keeping  such  ships  under  command. 

The  rule  for  sailing  vessels. 

2.  In  the  case  of  sailing  vessels,  those  having  the  wind  fair  must  give  way  to 
those  on  a  wind.  When  both  are  going  by  the  wind,  the  vessel  on  the  star- 
board tack  must  keep  her  wind,  and  the  one  on  the  larboard  tack  bear  up 
strongly,  passing  each  other  on  the  larboard  hand.  When  both  vessels  have 
the  wind  large  or  abeam,  and  meet,  they  must  pass  each  other  in  the  same  way 
on  the  larboard  hand,  to  effect  which  two  last-mentioned  objects  the  helm  must 
be  put  to  port.  Steam  vessels  must  be  regarded  as  vessels  navigating  with  a 
fair  wind,  and  should  give  way  to  sailing  vessels  on  a  wind  of  either  tack. 

Rules  for  steamers  in  narrow  channels. 

3.  A  steamer  navigating  a  narrow  channel  must,  whenever  it  is  safe  and  prac- 
ticable, keep  to  that  side  of  the  fairway  or  mid-channel  which  lies  on  the  star- 
board side  of  the  steamer. 

695 


5970-5981  CIYIL  CODE. 

Same. 

4.  A  steamer  when  passing  another  steamer  in  such  channel,  must  always 
leave  the  other  upon  the  larboard  side. 

Rules  for  steam  vessels  on  different  courses. 

5.  "When  steamers  must  inevitably  or  necessarily  cross  so  near  that,  by  con- 
tinuing their  respective  courses,  thei'e  would  be  a  risk  of  collision,  each  vessel 
must  put  her  helm  to  port,  so  as  always  to  pass  on  the  larboard  side  of  each 
other. 

3Ieet i ng  of  stea mers. 

6.  The  rules  of  this  section  do  not  apply  to  any  case  for  which  a  different 
rule  is  provided  by  the  regulations  for  the  government  of  pilots  of  steamers 
a]iproaching  each  other  within  sound  of  the  steam  whistle,  or  by  the  regula- 
tions concerning  lights  upon  steamers,  prescribed  under  authority  of  the  acts 
of  congress  approved  August  thirtieth,  eighteen  hundred  and  fifty-two,  and 
April  twenty-ninth,  eighteen  hundred  and  sixty-four. 

5971.  Collision  from  breach  of  rules. 

Sec.  971.  If  it  ai)j)ears  that  a  collision  was  occasioned  by  failure  to  observe 
vluj  rule  in  the  foregoing  section,  the  owner  of  the  ship  by  which  such  rule  is 
infringed,  cannot  recover  compensation  for  damages  sustained  by  the  ship  in 
such  collision,  unless  it  appears  that  the  circumstances  of  the  case  made  a 
departui-e  from  the  rule  necessary. 

5972.  Breaches  of  such  rules  to  imply  willful  default. 

Sec.  972.  Damage  to  person  or  property  arising  from  the  failure  of  a  shijD  to 
observe  any  rule  of  section  970,  must  be  deemed  to  have  been  occasioned  by  the 
willful  default  of  the  person  in  charge  of  the  deck  of  such  ship  at  the  time, 
unless  it  appears  that  the  circumstances  of  the  case  made  a  departure  from  the 
rule  necessary. 

5973.  Loss,  hmv  apportioned. 

Sec.  973.  Losses  caused  by  collision  are  to  be  borne  as  follows: 

1.  If  either  party  was  exclusively  in  fault  he  must  bear  his  own  loss,  and  com- 
jDensate  the  other  for  any  loss  he  has  sustained; 

2.  If  neither  was  at  fault,  the  loss  must  be  borne  by  him  on  whom  it  falls; 

3.  If  both  were  in  fault,  the  loss  is  to  be  equally  divided,  unless  it  appears 
that  there  was  a  great  disparity  in  fault,  in  which  case  the  loss  must  be  equita- 
bly apportioned; 

4.  If  it  cannot  be  ascertained  where  the  fault  lies,  the  loss  must  be  equally 
divided. 

CHAPTEK   III. 

PRODUCTS   OF   THE   MIND. 

5980.  How  far  the  subject  of  ownership. 

Sec.  980.  The  author  of  any  product  of  the  mind,  whether  it  is  an  invention, 
or  a  composition  in  letters  or  art,  or  a  design,  with  or  without  delineation,  or 
other  graphical  representation,  has  an  exclusive  ownership  therein,  and  in  the 
representation  or  expression  thereof,  which  continues  so  long  as  the  product 
and  the  representations  or  expressions  thereof  made  by  him  remain  in  his  pos- 
session. 

5981.  Joint  authorship. 

Sec.  981.  Unless  othervv-ise  agreed,  a  product  of  the  mind  in  the  production 
of  which  several  pei-sons  are  jointly  concerned,  is  owned  by  them  as  follows: 

1.  If  the  product  is  single,  in  equal  proportions; 

2.  If  it  is  not  single,  in  proportion  to  the  contribution  of  each. 

696 


PERSONAL  PROPERTY.  5982-5994 

5982.  Transfer. 

Sec.  982.  The  owner  of  any  product  of  the  mind,  or  of  any  representation  or 
exj)ression  thereof,  may  transfer  his  property  in  the  same. 

5983.  Effect  of  publication. 

Sec.  983.  If  the  owner  of  a  product  of  the  mind  intentionally  makes  it  public, 
a  coj)y  or  rej? reduction  may  be  made  public  by  any  person,  without  responsi- 
bility to  the  owner,  so  far  as  the  law  of  this  state  is  concerned. 

5984.  Subsequent  inventor,  author,  etc. 

Sec  984.  If  the  owner  of  a  product  of  the  mind  does  not  make  it  public,  any 
other  person  subsequently  and  originally  producing  the  same  thing  has  the  same 
right  therein  as  the  prior  author,  which  is  exclusive  to  the  same  extent  against 
all  persons  except  the  prior  author,  or  those  claiming  under  him. 

5985.  Private  ivritings. 

Sec  985.  Letters  and  other  j)rivate  communications  in  writing  belong  to  the 
person  to  whom  the}^  are  addressed  and  delivered;  but  they  cannot  be  pubhshed 
against  the  will  of  the  writer,  except  by  authority  of  law, 

CHAPTER  IV. 

OTHER  KINDS   OF   PERSONAL  PROPERTY. 

5991.  Trade-mark,  ivhat  may  be  appropriated. 

Sec  991.  One  who  produces  or  deals  in  a  particular  thing,  or  conducts  a  par- 
ticular business,  may  appropriate  to  his  exclusive  use,  as  a  trade-mark,  any 
form,  symbol,  or  name,  which  has  not  been  so  ajDj^ropriated  by  another,  to 
designate  the  origin  or  ownership  thereof,  but  he  cannot  exclusively  appropriate 
any  designation,  or  part  of  a  designation,  which  relates  only  to  the  name, 
quality,  or  the  description  of  the  thing  or  business,  or  the  place  where  the 
thing  is  produced,  or  the  business  is  carried  on.  [Amendment,  approved  Ilarch 
30,  1874;  Amendments  1873-4,  224;  took  effect  Juhj  1,  1874.^''^ 

[See  also,  upon  the  subject  of  trade-marks,  ante,  3196.] 

5992.  Good  will  of  business. 

Sec  992.  The  good  will  of  a  business  is  the  expectation  of  continued  public 
patronage,  but  it  does  not  include  a  right  to  use  the  name  of  any  person  from 
whom  it  was  acquired. 

5993.  Good  will  transferable. 

Sec.  993.  The  good  will  of  a  business  is  property,  transferable  like  any  other. 

5994.  Title  deeds. 

Sec  994.  Instruments  essential  to  the  title  of  real  property,  and  which  are 
not  kept  in  a  public  office  as  a  record,  pursuant  to  law,  belong  to  the  person  in 
whom,  for  the  time  Ueing,  such  title  may  be  vested,  and  pass  with  the  title. 

(a)  The  original  did  not  have  the  concluding  -words,  "  or  the  place  where  the  thing  is  produced,  or  the  business 
is  carried  on." 


697 


6000-6007  CIVIL  CODE. 

I>^RT  IV. 

ACQUISITION  OF  PEOPEKTY. 

Title  I.  Modes  in  which  Property  may  be  Acquired GOOO 

II.  Occupancy 6006 

III.  Accession 6013 

IT.  Transfer 6039 

V.  Homesteads 6237 

VI.  Wills 6270 

VII.  Succession 6383 

TITLE  I. 

Bl0i)C0  in  tuljjdj  Propcrtij  maij  be  3lc(juiiti>. 

6000.  Properly,  hoiv  acquired. 

Sec.  1000.  Property  is  acquired  by: 

1.  Occupancy; 

2.  Accession; 

3.  Ti'ansfer; 

4.  Will;  or, 

5.  Succession. 

6001.  Acquisition  of  property  by  exercise  of  eminent  domain. 

Sec.  1001.  Any  person  may,  without  further  legislative  action,  acquire  private 
property  for  any  use  specified  in  section  1238  of  the  Code  of  Civil  Procedure 
either  by  consent  of  the  owner  or  by  proceedings  had  under  the  provisions  of 
Title  VII,  Part  III,  of  the  Code  of  Civil  Procedure;  and  any  person  seeking  to 
acquire  proj^erty  for  any  of  the  uses  mentioned  in  such  title  is  "an  agent  of  the 
state,"  or  a  "  person  in  charge  of  such  use,"  within  the  meaning  of  those  terms 
as  used  in  such  title.  This  section  shall  be  in  force  from  and  after  the  fourth 
day  of  April,  eighteen  hundred  and  seventy-two. 


TITLE  11. 

(Occu;)ancij. 

6006.  Simple  occvpavcy. 

Sec.  1006.  Occupancy  for  any  period  confers  a  title  sufficient  against  all, 
except  the  state  and  those  who  have  title  by  prescription,  accession,  transfer, 
will,  or  succession. 

6007.  Presfri/ition. 

Sec.  1007.  Occupancy  for  the  period  prescribed  by  the  Code  of  Civil  Pro- 
cedure as  sufficient  to  bar  an  action  for  the  recover^'  of  the  property  confers  a 
title  thereto,  denominated  a  title  by  prescription,  which  is  sufficient  against  all. 


698 


ACCESSION.  6013-G019 


TITLE   III. 

%tttmo\u 

Chapter  I.  To  Real  Property G013 

II.  To  Personal  Property G025 

CHAPTER  I. 

ACCESSION  TO   REAL  PROPERTY. 

6013.  Fixtures. 

Sec.  1013.  When  a  person  affixes  bis  property  to  the  land  of  another,  with- 
out an  agreement  permitting  him  to  remove  it,  the  thing  affixed,  except  as  pro- 
vided in  section  1019,  belongs  to  the  owner  of  the  land,  unless  he  chooses  to 
require  the  former  to  remQve  it.  [Amendment,  approved  March  30,  1874; 
Amendments  1873-4,  224;  took  effect  July  1,  1874.<''> 

6014.  Alluvion. 

Sec.  1014.  AVhere,  from  natural  causes,  land  forms  by  imperceptible  de- 
grees upon  the  bank  of  a  river  or  stream,  navigable  or  not  navigable,  either  by 
accumulation  of  material  or  by  the  recession  of  the  stream,  such  land  belongs 
to  the  owner  of  the  bank,  subject  to  any  existing  right  of  way  over  the  bank. 

6015.  Sudden  removal  of  bank. 

Sec.  1015.  If  a  river  or  stream,  navigable  or  not  navigable,  carries  away,  by 
sudden  violence,  a  considerable  and  distinguishable  part  of  a  bank,  and  bears 
it  to  the  opposite  bank,  or  to  another  part  of  the  same  bank,  the  owner  of  the 
part  carried  away  may  reclaim  it  within  a  year  after  the  owner  of  the  land 
to  which  it  has  been  united  takes  possession  thereof. 

6016.  Islands  in  navigable  streams. 

Sec.  1016.  Islands  and  accumulations  of  land,  formed  in  the  beds  of  streams 
which  are  navigable,  belong  to  the  state,  if  there  is  no  title  or  prescription  to 
the  contrary. 

6017.  Li  unnavigable  streams. 

Sec.  1017.  An  island,  or  an  accumulation  of  land,  formed  in  a  stream  which 
is  not  navigable,  belongs  to  the  owner  of  the  shore  on  that  side  where  the 
island  or  accumulation  is  formed;  or,  if  not  formed  on  one  side  only,  to  the 
owners  of  the  shore  on  the  two  sides,  divided  by  an  imaginary  line  drawn 
through  the  middle  of  the  river. 

6018.  Islands  formed  by  division  of  stream. 

Sec.  1018.  If  a  stream,  navigable  or  not  navigable,  in  fonning  itself  a  new 
arm,  divides  itself,  and  surrounds  land  belonging  to  the  owner  of  the  shore, 
and  thereby  forms  an  island,  the  island  belongs  to  such  owner. 

[Sec.  1019,  as  originally  passed,*"^  was  repealed  by  act  approved  March  30, 
1874  (Amendments  1873-4,  224;  took  effect  July  1,  1874),  and  a  new  section 
substituted  in  its  place  as  follows :] 

6019.  What  fixtures  tenant  may  remove. 

Sec.  1019.  A  tenant  may  remove  from  the  demised  premises,  any  time  during 
the  continuance  of  his  term,  anything  affixed  thereto  for  jiurposes  of  trade, 
manufacture,  ornament,  or  domestic  use,  if  the  removal  can  be  effected  without 

(a)  The  original  section  did  not  have  the  words  "ex-  forms  a  new  course,  abandoning  its  ancient  bed.  the 

cept  as  provided  in  section  1019."  owners  of  the  land  newly  occupied  take,  by  way  of  iu- 

(6)  Repealed  section:  demnity,  the  ancient  bed  abandoned,  each  in  ijropor- 

Sec.  1019.  If  a  stream,  navigable  or'  not  navigable,  tion  to  the  land  of  which  he  has  been  deprived. 

699 


6019-6031  CIVIL  CODE. 

injmy  to  tlie  premises,  unless  the  thing  lias,  hj  the  manner  in  wliich  it  is 
affixed,  become  an  integral  part  of  tbe  premises.  [NeAV  section,  approved  31arch 
30,  1874;  Aniendmenls  1873-4,  224;  took  effect  July  1,  1874. 


CHAPTEE  II. 

ACCESSION   TO   TERSONAL   PEOPERTY. 

6025.  Accession  by  uniting  several  things. 

Skc.  1025.  When  things  belonging  to  different  owners  have  been  united  so  as  to 
form  a  single  thing,  and  cannot  be  separated  without  injury,  the  whole  belongs 
to  the  owner  of  the  thing  which  forms  the  principal  part;  who  must,  however, 
reimburse  the  value  of  the  residue  to  the  other  owner,  or  surrender  the  whole 
to  him. 

6026.  Principal  part,  what. 

Sec.  102G.  That  part  is  to  be  deemed  the  principal  to  which  the  other  has 
been  united  onl}-  for  the  use,  ornament,  or  completion  of  the  former,  unless  the 
latter  is  the  more  valuable,  and  has  been  united  withovit  the  knowledge  of  its 
owner,  who  may,  in  the  latter  case,  require  it  to  be  separated  and  retiu-ned  to 
him,  although  some  injur}''  should  result  to  the  thing  to  which  it  has  been 
united. 

6027.  Same. 

Sec.  1027.  If  neither  part  can  be  considered  the  principal,  within  the  rule 
prescribed  by  the  last  section,  the  more  valuable,  or,  if  the  values  are  nearly 
equal,  the  more  considerable  in  bulk,  is  to  be  deemed  the  principal  part. 

6028.  Uniting  materials  and  workmariship. 

Sec  1028.  If  one  makes  a  thing  from  materials  belonging  to  another,  the 
latter  may  claim  the  thing  on  reimbursing  the  value  of  the  workmanship,  unless 
the  value  of  the  workmanship  exceeds  the  value  of  the  materials,  in  which  case 
the  thing  belongs  to  the  maker,  on  reimbursing  the  value  of  the  materials. 

6029.  Inseparable  materials. 

Sec.  1029.  Where  one  has  made  use  of  materials  which  in  part  belong  to  him 
and  in  part  to  another,  in  order  to  form  a  thing  of  a  new  description,  without 
having  destroyed  any  of  the  materials,  but  in  such  a  way  that  they  cannot  be 
separated  without  inconvenience,  the  thing  formed  is  common  to  both  proprie- 
tors; in  proportion,  as  respects  the  one,  of  the  materials  belonging  to  him,  and 
as  respects  the  other,  of  the  materials  belonging  to  him  and  the  price  of  his 
workmanship. 

6030.  Maleriah  of  several  owners. 

Sec  1030.  When  a  thing  has  been  formed  by  the  admixture  of  several  ma- 
terials of  different  owners,  and  neither  can  be  considered  the  principal  substance, 
an  owner  without  whose  consent  the  admixture  was  made  may  require  a  sepa- 
ration, if  the  materials  can  be  separated  without  inconvenience.  If  they  cannot 
be  tluis  separated,  tlie  owners  ac(piire  the  thing  in  common,  in  proportion  to 
the  quantity,  quality,  and  value  of  their  materials;  but  if  the  materials  of  one 
were  far  superior  to  those  of  the  others,  both  in  quantity  and  value,  he  may 
claim  the  thing  on  reimbur.siug  to  the  others  the  value  of  their  materials. 

6031.  Willful  tres^jossers. 

Sec  1031.  The  foregoing  sections  of  this  article  are  not  applicable  to  cases 
in  which  one  willfully  uses  the  materials  of  another  without  his  consent;  but, 
in  sucli  cases,  the  product  belongs  to  the  owner  of  the  material,  if  its  identity 
can  be  traced. 

700 


TEANSFEE.  6032-6046 

6032.  Owner  may  elect  behceen  the  thing  and  its  value. 

Sec.  1032.  In  all  cases  where  one  whose  material  has  been  used  without  his 
knowledge,  in  order  to  form  a  product  of  a  different  description,  can  claim  an 
interest  in  such  product,  he  has  an  option  to  demand  either  restitution  of  his 
material  in  kind,  in  the  same  quantity,  weight,  measure,  and  quality,  or  the 
value  thereof;  or  where  he  is  entitled  to  the  product,  the  value  thereof  in  place 
of  the  i^roduct. 

6033.  Wrongdoer  liable  in  damages. 

Sec.  1033.  One  who  Avrongfully  employs  materials  belonging  to  another,  is 
liable  to  him  in  damages,  as  well  as  under  the  foregoing  provisions  of  this 
chapter. 

TITLE   lY. 

Chapter    I.  Transfer  in  General ,.  C039 

II.  Transfer  of  Eeal  Property   G091 

III.  Transfer  of  Personal  Property  G135 

IV,  Eecording  Transfers  of  Real  Property 6158 

V.  Unlawful  Transfers 6227 

CHAPTER  I. 

TEANSFERS  IN   GENERAL. 

Article   I.  Definition   of  Tbansfer 6039 

II.  What   mat  be   Tkansfekked 6044 

III.  Mode   of  Tkansfek  6052 

IV.  Intebpeetation  of  Grants 6066 

V.  Effect  of  Tkansfek 6083 

ARTICLE  I. 

definition  of  transfer. 
6089.  Transfer,  what. 

Sec  1039.  Transfer  is  an  act  of  the  parties,  or  of  the  law,  by  which  the  title 
to  property  is  conveyed  from  one  living  person  to  another. 

6040.    Voluntary  transfer. 

Sec.  1040.  A  volvintary  transfer  is  an  executed  contract,  subject  to  all  rules 
of  law  concerning  contracts  in  general;  except  that  a  consideration  is  not 
necessary  to  its  validity. 

ARTICLE   II. 

what  may  be  transferred. 

6044.  What  may  be  transferred. 

Sec.  1044.  Property  of  any  kind  may  be  transferred,  except  as  otherwise 
provided  by  this  article. 

6045.  Possibility. 

Sec  1045.  A  mere  possibility,  not  coupled  with  an  interest,  cannot  be  trans- 
ferred. 

6046.  Bight  of  re-entry  can  be  transferred. 

Sec  1046.  A  right  of  re-entiy,  or  of  repossession  for  breach  of  condition 
subsequent,  can  be  transferred. 

701 


6047-6066  CIVIL  CODE. 

6047.  Owner  ousted  of  possession  may  transfer. 

Sec.  1047.  Any  jDerson  claiming  title  to  real  property'  in  the  adverse  posses- 
sion of  another  may  transfer  it  with  the  same  effect  as  if  in  actual  possession. 

AETICLE  III. 

MODE    OF    TKANSFER. 

6052.  JVhen  oral. 

Sec.  1052.  A  transfer  may  be  made  without  writing,  in  every  case  in  -whicli  a 
writing  is  not  esin'essly  required  by  statute. 

6053.  Transfer  grant  defined. 

Sec  1053.  A  transfer  in  writing  is  called  a  grant,  or  conveyance,  or  bill  of 
sale.  The  term  "grant,"  in  this  and  the  next  two  articles,  includes  all  these 
instruments,  unless  it  is  specially  applied  to  real  proj)erty.  \Amendmevt,  ap- 
proved March  30,  1874;  Ameyidments  1873-4,  225;  took  effect  July  1,  1874.*"^ 

6054.  Delivery  necessary. 

Sec.  1054.  A  grant  takes  effect,  so  as  to  vest  the  interest  intended  to  be  trans- 
ferred, only  upon  its  delivery  by  the  grantor. 

6055.  Dale. 

Sec.  1055.  A  grant  daly  executed  is  presumed  to  have  been  delivered  at  its 
date. 

6056.  Delivery  to  grantee  is  necessarily  absolute. 

Sec.  105G.  A  grant  cannot  be  delivered  to  the  grantee  conditionally.  Deliv- 
ery to  him,  or  to  his  agent  as  such,  is  necessarily  absolute,  and  the  instrument 
takes  effect  thereupon,  discharged  of  any  condition  on  which  the  delivery  was 
made. 

6057.  Delivery  in  escrow. 

Sec  1057.  A  grant  may  be  deposited  by  the  grantor  with  a  third  person,  to 
be  delivered  on  performance  of  a  condition,  and,  on  delivery  by  the  depositary, 
it  will  take  effect.  AVhile  in  the  possession  of  the  third  person,  and  subject  to 
condition,  it  is  called  an  escrow. 

6058.  Surrendering  or  canceling  grant  does  not  reconvey. 

Sec  1058.  Redelivering  a  grant  of  real  property  to  the  grantor,  or  canceling 
it,  does  not  operate  to  retransfer  the  title. 

6059.  Constructive  delivery. 

Sec.  1059.  Though  a  grant  be  not  actually  delivered  into  the  possession  of 
the  grantee,  it  is  yet  to  be  deemed  constructively  delivered  in  the  following 
cases: 

1.  Where  the  instrument  is,  by  the  agreement  of  the  parties  at  the  time  of 
execution,  understood  to  be  delivered,  and  under  such  circumstances  that  the 
grantee  is  entitled  to  immediate  delivery;  or, 

2.  Wliere  it  is  delivered  to  a  stranger  for  the  benefit  of  the  grantee,  and  his 
assent  is  shown,  or  may  be  presumed. 

[Sec  lOGO'"*  was  repealed  by  act  approved  March  30,  1874;  Amendments 
1873-4,  225;  took  effect  July  1,  1874.] 

ARTICLE  IV. 

INTEUPRETATION    OF    GUANTS. 

60G6.   Grants,  how  interpreted. 

Sec  lOGG.  Grants  are  to  be  interpreted  in  like  manner  with  contracts  in  gen- 
eral, except  so  far  as  is  otherwise  provided  in  this  article. 

(n)  Orlginnl  section:  upon  its  execution,  even  though  the  grantor  retain 

Sec.  lO.J.  A  trauBfcT  in  writing  la  called  a  grant.  iJOBsesuion,  unices  a  contrary  inttntion  apwears. 

(/>)   llf-ppahd  section: 
8ec.  1060.  A  grunt  made  as  a  mere  gratuity  takes  effect 

702 


TRANSFER.  G0G7-G092 

6067.  Limitations,  hoiv  controlled. 

Sec.  10G7.  A  clear  and  distinct  limitation  in  a  grant  is  not  controlled  by  other 
words  less  clear  and  distinct. 

6068.  Recitals,  ivhen  resorted  to. 

Sec.  1068.  If  the  operative  words  of  a  grant  are  doubtful,  recourse  may  be 
had  to  its  recital  to  assist  the  constructions. 

6069.  Interpretation  against  grantor. 

Sec.  10G9.  A  grant  is  to  be  interpreted  in  favor  of  the  grantee,  except  that  a 
reservation  in  any  grant,  and  every  grant  by  a  public  officer  or  body,  as  such, 
to  a  private  party,  is  to  be  interpreted  in  favor  of  the  grantor. 

6070 .  Irreconcilable  provis ions . 

Sec.  1070.  If  several  parts  of  a  grant  are  absolutely  irreconcilable,  the  former 
part  prevails. 

6071.  Meaning  of"  heirs"  and  "  issue"  in  certain  remainders. 

Sec  1071.  Where  a  future  interest  is  limited  by  a  grant  to  take  effect  on  the 
death  of  any  person  without  heirs,  or  heirs  of  his  body,  or  without  issue,  or  in 
equivalent  words,  such  words  must  be  taken  to  mean  successors,  or  issue  living 
at  the  death  of  the  person  named  as  ancestor. 

6072.  Wo7'ds  of  inheritance  unnecessary. 

Sec.  1072.  Words  of  inheritance  or  succession  are  not  requisite  to  transfer  a 
fee  in  real  property. 

ARTICLE  V. 

EFFECT    OF    TRANSFER. 

6083.  What  title  jMsses. 

Sec  1083.  A  transfer  vests  in  the  transferee  all  the  actual  title  to  the  thing 
transferred  which  the  transferrer  then  has,  unless  a  different  intention  is  ex- 
pressed or  is  necessarily  implied. 

6084.  Incidents. 

Sec  1084.  The  transfer  of  a  thing  transfers  also  all  its  incidents,  unless 
expressly  excepted;  but  the  transfer  of  an  incident  to  a  thing  does  not  transfer 
the  thing  itself.     [See  also  post,  8540.] 

6085.  Grant  may  inure  to  benefit  of  stranger. 

Sec  1085.  A  present  interest,  and  the  benefit  of  a  condition  or  covenant 
resjiecting  property,  may  be  taken  by  any  natural  person  under  a  grant, 
although  not  named  a  party  thereto. 

CHAPTER   II. 

TRANSFER   OF    RE.\L   PROPERTY. 

Abticlb  I.  Mode  of  Teansfer 6091 

II.  Effect  of  Tkansfkr 6104 

ARTICLE  I. 

MODE    OF    TRANSFER. 

6091.  Requisites  for  transfer  of  certain  estates. 

Sec  1001.  An  estate  in  real  property,  other  than  an  estate  at  will  or  for  a 
term  not  exceeding  one  year,  can  be  transferred  only  by  operation  of  law,  or  by 
an  instrument  in  writing,  subscribed  by  the  party  disposing  of  the  same,  or  by 
his  agent  thereunto  authorized  by  writing. 

6092.  Form  of  grant. 

Sec  1092.  A  grant  of  an  estate  in  real  jproperty  may  be  made  in  substance 
as  follows : 

703 


6092-G105  CIVIL  CODE. 

"  I,  A.  B.,  grant  to  C.  D.  all  that  real  property  situated  in  (insert  name  of 
county)  county,  State  of  California,  bounded  (or  described)  as  follows:  (here 
insert  description,  or  if  the  land  sought  to  be  conveyed  has  a  descriptive  name, 
it  may  be  described  by  the  name,  as  for  instance,  '  The  Norris  Eanch.') 

"  Witness  my  hand  this  (insert  day)  day  of  (insert  month)  18—. 

"A.  B." 

6093.  Grant  by  married  women,  hoiv  acknowledged. 

Sec.  ]093.  No  estate  in  the  real  property  of  a  married  woman  passes  by  any 
grant  purporting  to  be  executed  or  acknowledged  by  her,  unless  the  grant  or 
instrument  is  acknowledged  by  her  in  the  manner  prescribed  by  sections  1186 
and  1191. 

6094.  Power  of  attorney  of  married  women,  hoiv  acknoivledged. 

Sec.  1094.  A  power  of  attorney  of  a  married  woman,  authorizing  the  execu- 
tion of  an  instrument  transferring  an  estate  in  her  separate  real  property,  has  no 
validity  for  that  purpose  until  acknowledged  by  her  in  the  manner  provided 
in  sections  118G  and  1191. 

6095.  Attorney  in  fact,  how  must  execute  for  principal. 

Sec  1095.  When  an  attorney  in  fact  executes  an  instrament  transferring  an 
estate  in  real  i^roperty,  he  must  subscribe  the  name  of  his  principal  to  it,  and 
his  own  name  as  attorney  in  fact. 

An  Act  relatiug  to  conveyances  of  real  estate. 

Approved  March  11,  1874;  1873-4,  345. 

Conveyances  by  persons  ivhose  names  are  changed. 

Section  1.  Any  person  in  whom  the  title  of  real  estate  is  vested,  who  shall 
afterwards,  from  any  cause  have  his  or  her  name  changed,  shall,  in  any  convey- 
ances of  real  estate  so  held,  set  forth  the  name  in  which  he  or  she  derived  title 
to  said  real  estate. 

Record  of  conveyances  made  by  j)ublic  officers. 

Sec  2.  All  conveyances  of  real  estate,  except  patents  issued  by  the  state  as  a 
party,  made  by  any  public  officer  pursuant  to  any  law  of  this  state,  shall,  when 
recorded  by  the  county  recorder,  be  by  him  alphabetically  indexed  in  the 
"Index  of  grantors,"  both  in  the  name  of  the  officer  making  such  sale,  and  in 
the  name  of  the  person  owning  the  proj^erty  so  sold. 
Indexing  of  such  conveyances. 

Sec  3.  It  is  hereby  made  the  duty  of  all  county  recorders  to  alphabetically 
index  in  the  "Index  of  grantors,"  both  in  the  name  by  which  title  was 
acquired,  and  also  the  name  by  which  the  same  was  conveyed,  all  conveyances 
referred  to  in  section  one  of  this  act. 

Sec  4.  This  act  shall  be  in  force  from  and  after  its  passage. 

ARTICLE   11. 

EFFECT  OF  TRANSFER. 

6104.  What  easements  pass  with  property. 

Sec  1104.  A  transfer  of  real  property  passes  all  easements  attached  thereto, 
and  creates  in  favor  thereof  an  easement  to  use  other  real  property  of  the  person 
whose  estate  is  transferred  in  the  same  manner  and  to  the  same  extent  as  such 
property  was  obviously  and  permanently  used  by  the  person  whose  es.tate  is 
transferred,  for  the  benefit  thereof,  at  the  time  when  the  transfer  was  agreed 
upon  or  completed. 

6105.  When  fee  simple  title  is  presumed  to  pass. 

Sec  1105.  A  fee  simple  title  is  presumed  to  be  intended  to  pass  by  a  grant 

704 


TRANSFER.  6105-6113 

of  real  property,  unless  it  appears  from  the  grant  that  a  lesser  estate  was  in- 
tended. 

6106.  Subsequently  acquired  titte  passes  brj  operation  of  law. 

Sec.  1106.  Where  a  person  purports  by  proper  instrument  to  grant  real  i)rop- 
erty  in  fee  simple,  and  subsequently  acquires  any  title,  or  claim  of  title  thereto, 
the  same  passes  by  operation  of  law  to  the  grantee,  or  his  successors. 

6107.  Grant,  how  far  conclusive  on  purchaser. 

Sec.  1107.  Every  grant  of  an  estate  in  real  projoerty  is  conclusive  against  the 
grantor,  also  against  every  one  subsequently  claiming  under  him,  except  a  pur- 
chaser or  incumbrancer  who  in  good  faith  and  for  a  valuable  consideration 
acquires  a  title  or  lien  by  ah  instrument  that  is  first  duly  recorded. 

6108.  Conveyances  by  owner  for  life  or  for  years. 

Sec.  1108.  A  grant  made  by  the  owner  of  an  estate  for  life  or  years,  purport- 
ing to  transfer  a  greater  estate  than  he  could  lawfully  transfer,  does  not  work  a 
forfeiture  of  his  estate,  but  passes  to  the  grantee  all  the  estate  which  the 
grantor  could  lawfully  transfer, 

6109.  Grant  made  on  condition  subsequent. 

Sec  1109.  Where  a  grant  is  made  upon  condition  subsequent,  and  is  subse- 
quently defeated  by  the  non-performance  of  the  condition,  the  person  other- 
wise entitled  to  hold  under  the  grant  must  reconvey  the  projjerty  to  the  grantor 
or  his  successors,  by  grant,  duly  acknowledged  for  record. 

6110.  Grant  on  condition  precedent. 

Sec.  1110.  An  instrument  purporting  to  be  a  grant  of  real  property,  to  take 
effect  upon  condition  precedent,  passes  the  estate  upon  the  performance  of  the 
condition.  [Amendment,  approved  March  30,  1874;  Amendments  1873-4,  225; 
took  effect  July  1,  1874.^=^^ 

6111.  Grant  of  rents,  reversions,  and  remainders. 

Sec  1111.  Grants  of  rents  or  of  reversions  or  of  remainders  are  good  and 
effectual  without  attornments  of  the  tenants;  but  no  tenant  who,  before  notice 
of  the  grant,  shall  have  paid  rent  to  the  grantor,  must  suffer  any  damage 
thereby. 

6112.  Boundary  by  highway,  what  passes. 

Sec  1112.  A  transfer  of  land,  bounded  by  a  highway,  passes  the  title  of  the 
person  whose  estate  is  transferred  to  the  soil  of  the  highway  in  front  to  the 
centre  thereof,  unless  a  different  intent  appears  from  the  grant.  [Amendment, 
approved  March  30,  1874;  Amendments  1873-4,  225;  took  effect  July  1,  1874.'^^ 

6113.  Implied  covenants. 

Sec.  1113.  From  the  use  of  the  word  "grant"  in  any  conveyance  by  which 
an  estate  of  inheritance  or  fee  simple  is  to  be  passed,  the  following  covenants, 
and  none  other,  on  the  part  of  the  grantor  for  himself  and  his  heirs  to  the 
grantee,  his  heirs,  and  assigns,  are  implied,  unless  restrained  by  express  terms 
contained  in  such  conveyance: 

1.  That  previous  to  the  time  of  the  execution  of  such  convej'ance,  the  grantor 
has  not  conveyed  the  same  estate,  or  any  right,  title,  or  interest  therein,  to  any 
person  other  than  the  grantee; 

2.  That  such  estate  is  at  the  time  of  the  execution  of  such  conveyance  free 
from  encumbrances  done,  made,  or  suffered  by  the  grantor,  or  any  joerson  claim- 
ing under  him. 

(o)  Original  section:  formance  of  the  condition,  the  grantee  is  entitled  to  a 
Sec.  111(1.  An  instniment  purporting  to  be  a  grant  of  grant  from  the  grantor  or  his  successors  for  the  prop- 
real  property,  to  take  effect  upon  condition  precedent,  erty,  duly  acknowledged  for  record, 
does  not  pass  the  estate  upon  the  performance  of  the  [b)  The   original   section   did   not  have  the  words 
condition.     Such  instrument  is  an  executory  contract  "  unlets  a  different  intent  appears  from  the  grant." 
for  the  conveyance  of  the  property.    Upon  the  per- 

45  705 


6113-6142  CIYIL  CODE. 

Such  covenants  may  be  sued  upon  in  the  same  manner  as  if  they  had  been 
expressly  inserted  in  the  conveyance. 

6114.  Incumhrances,  ivhat  include. 

Sec.  1114.  The  term  "incumbrances"  inchules  taxes,  assessments,  and  all 
liens  upon  real  prof)erty.  [Amendment,  approved  3Iarch  30,  1874;  Amendments 
1873-4,  225;  took  effect  July  1,  1874.''> 

6115.  Lineal  and  collateral  warrantees  abolished. 

Sec.  1115.  Lineal  and  collateral  warrantees,  with  all  their  incidents,  are 
abolished;  but  the  heirs  and  devisees  of  every  person  who  has  made  any  cove- 
nant or  agreement  in  reference  to  the  title  of,  in,  or  to  any  real  propert}-,  are 
answerable  upon  such  covenant  or  agreement  to  the  extent  of  the  land  de- 
scended or  devised  to  them,  in  the  cases  and  in  the  manner  prescribed  by  law. 

CHAPTER  III. 

TEANSFER  OF  PERSONAL  PROPERTY. 

Akticle  I.  Mode  of  Ti!Ansfee 6135 

II.  What  opekates  as  a  Tkansfeb 6140 

III.  Gifts 6146 

ARTICLE  I. 

MODE    OF    TRANSFER. 

6135.  Wlien  must  be  in  ivriting. 

Sec  1135.  An  interest  in  a  ship,  or  in  an  existing  trust,  can  be  transferred 
only  by  operation  of  law,  or  by  a  written  instrument,  subscribed  by  the  person 
making  the  transfer,  or  by  his  agent. 

6136.  Tramtfer  by  sale,  etc. 

Sec.  1136.  The  mode  of  transferring  other  personal  property  by  sale  is  regu- 
lated by  the  title  on  that  subject,  in  Division  Third  of  this  Code. 

ARTICLE  II. 

WHAT  OPERATES  AS  A  TRANSFER. 

6140.  Transfer  of  title  under  sale. 

Sec.  1140.  The  title  to  personal  property,  sold  or  exchanged,  passes  to  the 
buyer  whenever  the  parties  agree  upon  a  present  transfer,  and  the  thing  itself 
is  identified,  whether  it  is  separated  from  other  things  or  not. 

6141.  Transfer  of  title  under  executory  agreement  for  sale. 

Sec.  1141.  Title  is  transferred  by  an  executory  agreement  for  the  sale  or  ex- 
change of  i^ersonal  property  only  when  the  buyer  has  accepted  the  thing,  or 
when  the  seller  has  completed  it,  prepared  it  for  delivery,  and  offered  it  to  the 
buyer,  with  intent  to  transfer  the  title  thereto,  in  the  manner  prescribed  by  the 
chapter  upon  offer  of  performance. 

6142.  When  buyer  acquires  better  title  than  seller  has. 

Sec.  1142.  Where  the  possession  of  personal  property,  together  with  a  power 
to  dispose  thereof,  is  transferred  by  its  owner  to  another  person,  an  executed 
sale  Ijy  the  latter,  while  in  possession,  to  a  buyer  in  good  faith  and  in  the  ordi- 
nary course  of  business,  for  value,  transfers  to  such  buyer  the  title  of  the  former 
owner,  though  he  may  be  entitled  to  rescind,  and  does  rescind  the  transfer  made 
by  him. 

(o)  Original  section:  cution  liens;  also,  vendors',  mechanics',  and  mortgage 

Sec.  11  U.  The  term  "  incumbrances  "  includes  taxes     liens;  also,  all  other  debts  or  demands  which  are  liens 
and  BBsessmentB;  also,  attachment,  judgment,  and  exe-     upon  real  property. 

706 


TRANSFER.  6146-6158 

ARTICLE  III. 

GIFTS. 

6146.  Gifts  defined. 

Sec.  1146.  A  gift  is  a  transfer  of  personal  property,  made  voluntarily,  and 
without  consideration. 

6147.  Gift,  hoiv  made. 

Sec.  1147.  A  verbal  gift  is  not  valid,  imlesstlie  means  of  obtaining  possession 
and  control  of  the  thing  are  given,  nor,  if  it  is  capable  of  delivery,  unless  there 
is  an  actual  or  symbolical  delivery  of  the  thing  to  the  donee. 

6148.  Gift  not  revocable. 

Sec.  1148.  A  gift,  other  than  a  gift  in  view  of  death,  cannot  be  revoked  by 
the  giver. 

6149.  Gift  in  vieio  of  death,  what. 

Sec.  1149.  A  gift  in  view  of  death  is  one  which  is  made  in  contemplation, 
fear,  or  peril  of  death,  and  with  intent  that  it  shall  take  effect  only  in  case  of 
the  death  of  the  giver. 

6150.  When  gift  presumed  to  he  in  vieto  of  death. 

Sec.  1150.  A  gift  made  during  the  last  illness  of  the  giver,  or  under  circum- 
stances which  would  naturally  impress  him  with  an  expectation  of  speedy  death, 
is  presumed  to  be  a  gift  in  view  of  death. 

6151.  Revocation  of  gift  in  view  of  death. 

Sec.  1151.  A  gift  in  view  of  death  may  be  revoked  by  the  giver  at  any  time, 
and  is  revoked  by  his  recovery  from  the  illness,  or  escape  from  the  peril,  under 
the  i^resence  of  which  it  was  made,  or  by  the  occurrence  of  any  event  which 
would  operate  as  a  revocation  of  a  will  made  at  the  same  time;  but  when  the 
gift  has  been  delivered  to  the  donee,  the  rights  of  a  bona  fide  purchaser  from 
the  donee  before  the  revocation,  shall  not  be  affected  by  the  revocation.  [Amend- 
ment, approved  March  30,  1874;  Amendments  1873-4,  226;  took  effect  July  1, 
1874."^^ 

6152.  Effect  of  loill  upon  gift. 

Sec.  1152.  A  gift  in  view  of  death  is  not  affected  by  a  previous  will;  nor  by  a 
subsequent  will,  unless  it  expresses  an  intention  to  revoke  the  gift. 

6153.  When  treated  as  legacy. 

Sec.  1153.  A  gift  in  view  of  death  must  be  treated  as  a  legacy,  so  far  as 
relates  only  to  the  creditors  of  the  giver. 

CHAPTER    IV. 

EECORDING  TRANSFERS. 

Article  I.  What  mat  be  Recoeded 6158 

II.  Mode  of  Recouding  *il69 

III.  Proof  and  Acknowledgments  op  Instruments 6180 

IV.  Effect  of  Recokding  ok  of  the  want  thereof 6213 

ARTICLE  I. 

WHAT    MAY    BE    RECORDED. 

6158.   What  may  he  recorded. 

Sec,  1158.  Any  instrument  or  judgment  affecting  the  title  to  or  possession 
of  real  property  may  be  recorded  under  this  chapter. 

(a)  The  original  section  did  not  have  the  last  clavise  commencing  with  the  words  "  but  when  the  gift  has  been 
delivered  to  the  donee." 

707 


G159-G170  CIYIL  CODE. 

6159.  Judgments  may  be  recorded  wUhont  achwidedgment. 

Sec.  1159.  Judgments  affecting  the  title  to  or  possession  of  real  property, 
authenticated  by  the  certificate  of  the  clerk  of  the  court  in  -which  such  judg- 
ments were  rendered,  may  be   recorded   without   acknowledgment  or  further 

.„t 

%  1160.     Add,  "  and  wliere  letters  patent  liave  been  lost  or 
are  l>eyoiid  the  control  of  any  party  deraignin-  title  therefrom  3dgment. 

or  for  any  reason  they  remain  unrecorded,  any  person  claiming  or  from   the    State   of   Cali- 

title  tliereiinderniay  cause  a  transcript  of  the  copy  of  such  let-  -l-         ^  i  i     i 

ters  patent  kept  by  the  government  issuing  the  same,  duly  cer-  ^^^^^°  l^W,  may   be  recorded 

tified  by  the  ollicer  or  individual  having  lawful  custody  of  such 
copy,  to  be  recorded  in  lieu  of  the  original ;  and  such  "recorded 
copy  shall  \va\q prima  facie  the  same  force  and  effect  as  the 

original,  for  title  or  for  evidence,  until  said  original  letters  pat-  rl    unless   it    belono-q   to    the 

ent  be  recorded."     [In  effect,  May  31,  1878.1  '  ^"^®^^   It    DeiongS   to    tue 

«.iaoo  |.xvy.xviv..vc  ^^^  ^-' I  aud  fifty-ulne,  eleven  hun- 

dred and  sixt}',  twelve  hundred  and  two,  or  twelve  hundred  and  three,  its  exe- 
cution must  be  acknowledged  by  the  person  executing  it,  or  if  executed  by  a 
corporation,  by  its  president  or  secretarj^,  or  proved  by  a  subscribing  witness, 
or  as  provided  in  sections  eleven  hundred  and  ninety-eight  and  eleven  hundred 
and  ninety-uine,  and  the  acknowledgment  or  proof  certified  in  the  manner  pre- 
scribed by  Article  III  of  this  chapter.  [Amendment,  approved  March  30,  1874; 
Amendments  1873-4,  220;  took  effect  July  I,  1874.'''^ 

6162.  Same. 

Skc.  11G2.  An  instrument  j^roved  and  certified  2)ursuant  to  sections  1198  and 
1199  may  be  recorded  in  the  j)roper  office  if  the  original  is  at  the  same  time 
deposited  therein  to  remain  for  public  inspection,  but  not  otherwise. 

[Sec  1163'*"  was  repealed  by  act  approved  March  30,  1874;  Amendments 
1873-4,  226;  took  effect  July  1,  1874.] 

6164.  Transfers  in  trust,  etc. 

Sec.  1164.  Transfers  of  j^roperty  in  trust  for  the  benefit  of  creditors,  and 
transfers  or  liens  on  property  by  waj'  of  mortgage,  are  required  to  be  recorded 
in  the  cases  sjDecified  in  the  titles  on  the  special  relation  of  debtor  and  creditor, 
and  the  chapter  on  mortgages,  respectively. 

6165.  Fees  of  recorder  to  he  indorsed. 

Sec  1165.  The  recorder  must  in  all  cases  indorse  the  amount  of  his  fee  for 
recordation  on  the  instrument  recorded.  [New  section,  approced  Marcli  11, 1874; 
Amendments  1873-4,  274;  took  effect  sixtietli  day  of  I  cr  passage. 

ARTICLE  II. 

MODE    OF    EECOEDING. 

61G9.  In  XL-hut  office. 

Sec  11G*J.  Instmments  entitled  to  be  recorded  must  be  recorded  by  the 
county  recorder  of  the  county  in  which  the  real  property  affected  thereby  is 
situated. 

6170.  Instrument,  xclien  deemed  recorded. 

Sec  1170.  An  instrument  is  deemed  to  be  recorded,  when,  being  duly 
acknowledged  or  proved,  and  certified,  it  is  deposited  in  the  recorder's  office 
with  the  proper  officer  for  record.  [Amendment,  approved  Ilarch  30,  1874; 
Aotendnients  1873-4,  226;  took  effect  July  1,  1874.'"' 

(a)  Tin- uriKinal  HIM  linn  dill  not  liavc- the  words  "or  (c)  Ori^iiualeection: 

OR  iTONlilid  in  witionH  tUvi  ii  liinidri-fl  and  ninety-  Sec.  1170.  An  iustrumcnt  ia  recorded  when  duly  no- 

I  i^'ht  unil  ill  VI  I)  liundriwl  und  ninity-uinc."  •  kuowledged  or  provc-d.  certiticd,  and  deposited  in  the 

(M  Itipi-jilid  witi.  n:  rerordir's  offiie  with  the  proper  lilicer,  and  1,y  him 

Six.  hi:;.  An  inslniinent  excciiU'd  by  an  attorney  in  filed  for  record,  bv  noting  therton  siu  h  filing,  with  the 

f»rt  must  not  U-  recordf-d  nntil  the  power  of  attorney  minute,  hour,  day,  and  year  thereof,  aud  Bubscribiug 

authorizing  the  execution  of  the  instrument  is  filed  for  thi-  same. 

record  in  the  satue  office. 

708 


TEANSFEK.  G171-G183 

6171.  Books  of  record. 

Sec.  1171.  Grants,  absolute  in  terms,  are  to  be  recorded  in  one  set  of  books, 
and  mortgages  in  another. 

6172.  Duties  of  recorder. 

Sec.  1172.  The  duties  of  county  recorders,  in  respect  to  recording  instru- 
ments, are  prescribed  by  the  Political  Code. 

6173.  Transfer  of  vessels. 

Sec.  1173.  The  mode  of  recording  transfers  of  ships  registered  under  the  laws 
of  the  United  States  is  regulated  by  acts  of  congress. 

AKTICLE  III. 

PEOOF    AND    ACKNOWLEDGMENT    OF    INSTRUMENTS. 

6180.  By  whom  acknowledgments  may  he  taken  in  tliis  state. 

Sec.  1180.  The  proof  or  acknowledgment  of  an  instrument  may  be  made  at 
an}'  place  within  this  state  before  a  justice  or  clerk  of  the  supreme  court. 

6181.  Same. 

Sec.  1181.  The  proof  or  acknowledgment  of  an  instrument  may  be  made  in 
this  state  within  the  city,  county,  or  district  for  which  the  officer  was  elected  or 
appointed,  before  either: 

1.  A  judge  or  clerk  of  a  court  of  record;  or, 

2.  A  mayor  or  recorder  of  a  city;  or, 

3.  A  court  commissioner;  or, 

4.  A  county  recorder;  or, 

5.  A  notary  public;  or, 

6.  A  justice  of  the  peace. 

6182.  By  tohom  taken  ivithout  the  state. 

Sec.  1182.  The  proof  or  acknowledgment  of  an  instrument  may  be  made 
without  this  state,  but  within  the  United  States,  and  within  the  jurisdiction  of 
the  officer,  before  either: 

1.  A  justice,  judge,  or  clerk  of  any  court  of  record  of  the  United  States;  or, 

2.  A  justice,  judge,  or  clerk  of  any  court  of  record  of  any  state;  or, 

3.  A  commissioner  aj)pointed  by  the  governor  of  this  state  for  that  purpose;  or, 

4.  A  notary  public;  or, 

5.  Any  other  officer  of  the  state  where  the  acknowledgment  is  made  author- 
ized by  its  laws  to  take  such  proof  or  acknowledgment. 

6183.  Acknowledgment,  by  whom  taken  ivithout  United  States. 

Sec.  1183.  The  proof  or  acknowledgment  of  an  instrument  may  be  made 
without  the  United  States,  before  either: 

1.  A  minister,  commissioner,  or  charge  d'affaires  of  the  United  States,  resi- 
dent and  accredited  in  the  country  where  the  proof  or  acknowledgment  is 
made;  or, 

2.  A  consul,  vice-consul,  or  consular  agent  of  the  United  States,  resident  in 
the  country  where  the  proof  or  acknowledgment  is  made;  or, 

3.  A  judge  of  a  court  of  record  of  the  country  where  the  proof  or  acknowl- 
edgment is  made;  or, 

4.  Commissioners  appointed  for  such  purposes  by  the  governor  of  the  state, 
pursuant  to  special  statutes;  or, 

5.  A  notary  i:)ublic.  [Aniendmeid,  approved  March  30,  1874;  Amendments 
1873-4,  227;  took  effect  July  1,  1874.<*>     . 

(a)   The  original  section  did  not  have  the  words  "  consular  agent." 

709 


618J^6191  CmL  CODE. 

6184.  Deputy  can  take  acknowledgment. 

Sec.  1184.  "When  any  of  the  officers  mentioned  in  tlie  four  preceding  sections 
are  aiitborized  by  law  to  appoint  a  deputy,  the  acknowledgmeut  or  proof  may- 
be taken  by  such  deputy,  in  tlie  name  of  his  principal. 

6185.  ri'^quisites  for  acknoidedipnents. 

Sec.  1185.  The  acknowledgment  of  an  instrument  must  not  be  taken,  unless 
the  officer  taking  it  knows,  or  has  satisfactory  evidence,  on  the  oath  or  affirma- 
tion of  a  credible  witness,  that  the  person  making  such  acknowledgment  is  the 
individual  who  is  described  in  and  who  executed  the  instrument;  or,  if  executed 
by  a  corporation,  that  the  person  making  such  acknowledgment  is  the  president 
or  secretary'  of  such  corporation. 

6186.  Acknoivledgment  by  married  tuomen. 

Sec.  1186.  The  acknowledgment  of  a  married  woman  to  an  instrument  pur- 
I^orting  to  be  executed  by  her,  must  not  be  taken,  unless  she  is  made  acquainted 
by  the  officer  with  the  contents  of  the  instrument  on  an  examination  without 
the  healing  of  her  husband;  nor  certified,  unless  she  thereupon  acknowledges 
to  the  officer  that  she  executed  the  instrument,  and  that  she  does  not  wish  to 
retract  such  execution. 

6187.  Same. 

Sec.  1187.  A  conveyance  by  a  married  woman  has  the  same  effect  as  if  she 
were  unmarried,  and  may  be  acknowledged  in  the  same  manner,  except  as 
mentioned  in  the  last  section;  but  such  conveyance  has  no  validity  until  so 
acknowledged. 

6188.  Certificate  to  he  indorsed  on  acknoivledgment. 

Sec.  1188.  An  officer  taking  the  acknowledgment  of  an  instrument,  must 
indorse  thereon,  or  attach  thereto,  a  certificate  substantially  in  the  forms  here- 
inafter prescribed.  [Amendment,  approved  March  30, 1874;  Amendments  1873-4, 
227;  took  effect  July  1,  1874.*^ > 

6189.  General  form  of  certificate. 

Sec  1189.  The  certificate  of  acknowledgment,  unless  it  is  otherwise  in  this 
article  provided,  must  be  substantially  in  the  following  form: 

State   of  ,  ] 

County  of  .  f 

On  this day  of  ,  in  the  year ,  before  me  [here  insert  the  name 

and  quality  of  the  officer],  personally  ajipeared ,  known  to  me  [or  proved 

to  me  on  the  oath  of  ]  to  be  the  person  whose  name  is  subscribed  to  the 

within  instniment,  and  acknowledged  to  me  that  he  [or  they]  executed  the 
same. 

6190.  Form  of  acknowledgment  by  corporation. 

Sec.  1190.  The  certificate  of  acknowledgment  of  an  instniment  executed  by  a 
corporation  must  be  substantially  in  the  following  form : 

State  of  ,  ] 

County  of .  ]  ^^• 

On  this day  of ,  in  the  year ,  l)efore  me  [here  insert  the  name 

and  quality  of  the  officer],  personally  appeared ,  known  to  me  [or  proved 

to  me  on  the  oath  of ]  to  be  the  president  [or  the  secretaiy]  of  the  corpora- 
tion that  executed  the  within  instrument,  and  acknowledged  to  me  that  such 
corporation  executed  the  same. 

6191.  Form  of  certificate  of  acknoxoledgment  by  married  icomen. 

Sec.  1191.  The  certificate  of  acknowledgment  by  a  maiiied  woman  must  be 
substantially  in  the  following  form: 

(a)  The  original  eettion  did  not  havo  the  words  "  or  attach  thereto." 

710 


TKANSFER.  6191-6197 

State  of  , 


County  of  ^ 

On  this day  of ,  in  the  year ,  before  me  [here  insert  the  name 

and  quality  of  the  officer],  personally  appeared ,  known  to  me  [or  proved  to 

me  on  the  oath  of ]  to  be  the  person  whose  name  is  subscribed  to  the  within 

instrument,  described  as  a  married  woman;  and  upon  an  examination  without 
the  hearing  of  her  husband  I  made  her  acquainted  with  the  contents  of  the  in- 
strument, and  thereupon  she  acknowledged  to  me  that  she  executed  the  same, 
and  that  she  does  not  wish  to  retract  such  execution. 

6192.   Form  of  certificate  of  acknoioledgmenl  by  attorney  in  fact. 

Sec.  1192.   The  certificate  of  acknowledgment  by  an  attorney  in  fact,  must  be 
substantially  in  the  following  form: 
St.\te  of 


County  of  ^ 

On  this day  of ,  in  the  year ,  before  me  [here  insert  the  name 

and  quality  of  the  officer],  personally  appeared ,  known  tome  [or  proved  to 

me  on  the  oath  of ]  to  be  the  person  whose  name  is  subscribed  to  the  within 

instrument  as  the  attorney  in  fact  of  ■ ,  and  acknowledged  tome  that  he  sub- 
scribed the  name  of thereto  as  principal,  and  his  own  name  as  attorne}^  in 

fact. 

6193.  Officers  must  affix  their  signatures. 

Sec.  1193.  Officers  taking  and  certifying  acknowledgments  or  proof  of  instru- 
ments for  record,  must  authenticate  their  certificates  by  affixing  thereto  their 
signatures,  followed  by  the  names  of  their  offices;  also,  their  seals  of  office.  If 
by  the  laws  of  the  state  or  country  where  the  acknowledgment  or  proof  is  taken, 
or  by  authority  of  which  they  are  acting,  they  are  required  to  bave  official 
seals, 

6194.  Certificate  of  authority  of  justices  in  certain  cases. 

Sec.  1194.  The  certificate  of  proof  or  acknowledgment,  if  made  before  a  jus- 
tice of  the  peace,  when  used  in  any  county  other  than  that  in  which  he  resides, 
must  be  accompanied  by  a  certificate  under  the  hand  and  seal  of  the  clerk  of 
the  county  in  which  the  justice  resides,  setting  forth  that  such  justice,  at  the  time 
of  taking  such  proof  or  acknowledgment,  was  authorized  to  take  the  same,  and 
that  the  clerk  is  accjuainted  with  his  handwriting,  and  believes  that  the  signa- 
ture to  the  original  certificate  is  genuine, 

6195.  Proof  of  execution,  hoic  made. 

Sec.  1195.  Proof  of  the  execution  of  an  instrument,  when  not  acknowledged, 
may  be  made  either: 

1,  By  the  party  executing  it,  or  either  of  them;  or 

2,  By  a  subscribing  witness;  or 

3,  By  other  witnesses,  in  cases  mentioned  in  section  1398, 

6196.  Witness  must  be  personally  known  to  officer. 

Sec  1196.  If  by  a  subscribing  witness,  such  witness  must  be  personally 
known  to  the  officer  taking  the  proof  to  be  the  person  whose  name  is  subscribed 
to  the  instrument  as  a  witness,  or  must  be  proved  to  be  such  by  the  oath  of  a 
credible  witness. 

6197.  Witness  must  jorove ,  what. 

Sec.  1197.  The  subscribing  witness  must  prove  that  the  person  whose  nnme 
is  subscribed  to  the  instrument  as  a  party  is  the  person  described  in  it,  and  that 
such  person  executed  it,  and  that  the  witness  subscribed  his  name  therei|^s  a 
witness. 

711 


6198-6203  CWIL  CODE. 

6198.  Handwriting  may  he  proved,  ichen. 

Sec.  1198.  The  execution  of  au  instrument  may  be  established  by  proof  of 
the  handwiiting  of  the  party  and  of  a  subscribing  witness,  if  there  is  one,  in 
the  following  cases: 

1.  When  the  parties  and  all  the  subscribing  witnesses  are  dead;  or, 

2.  AVhen  the  parties  and  all  the  subscribing  witnesses  are  non-residents  of 
the  state;  or, 

3.  When  the  place  of  their  residence  is  unknown  to  the  party  desiring  the 
proof,  and  cannot  be  ascertained  by  the  exercise  of  due  diligence;  or, 

4.  "VMien  the  subscribing  witness  conceals  himself,  or  cannot  be  found  by  the 
officer  by  the  exercise  of  due  diligence  in  attemj^ting  to  serve  the  subpoena  or 
attachment;  or, 

5.  In  case  of  the  continued  failure  or  refusal  of  the  witness  to  testify,  for 
the  space  of  one  hour,  after  his  appearance. 

6199.  Evidence  of  handwriting  must  jyrove  what. 

Sec.  1199.  The  evidence  taken  under  the  preceding  section  must  satisfac- 
toril}-  prove  to  the  officer  the  following  facts: 

1.  The  existence  of  one  or  more  of  the  conditions  mentioned  therein;  and, 

2.  That  the  witness  testifying  knew  the  person  whose  name  purports  to  be 
subscribed  to  the  instrument  as  a  party,  and  is  well  acquainted  with  his  signa- 
ture, and  that  it  is  genuine;  and, 

3.  That  the  witness  testifying  personally  knew  the  person  who  subscribed  the 
instrument  as  a  witness,  and  is  well  acquainted  with  his  signature,  and  that  it 
is  genuine;  and, 

'  4.  The  place  of  residence  of  the  witness.     [Amendment,  approved  March  30, 
1874;  Amendments  1873-4,  227;  took  effect  July  1,  1874.^''> 

6200.  Certificate  of  proof 

Sec.  1200.  An  oflicer  taking  proof  of  the  execution  of  any  instrument  must, 
in  his  certificate  indorsed  thereon  or  attached  thereto,  set  forth  all  the  matters 
required  by  law  to  be  done  or  known  by  him,  or  proved  before  him  on  the  pro- 
ceeding, together  with  the  names  of  all  the  witnesses  examined  before  him, 
their  places  of  residence  respectively,  and  the  substance  of  their  testimon}'. 

6201.  Officers  authorized  to  do  certain  things. 

Sec  1201.  Officers  authorized  to  take  the  proof  of  instruments  are  authorized 
in  such  proceedings: 

1.  To  administer  oaths  or  affirmations,  as  prescribed  in  section  2093,  Code  of 
Civil  Procedure; 

2.  To  employ  and  swear  interpreters; 

3.  To  issue  subpoena,  as  prescribed  in  section  1986,  Code  of  Civil  Procedure. 

4.  To  punish  for  contempt,  as  prescribed  in  sections  1991,  1993,  1994,  Code 
of  Civil  Procedure. 

The  civil  diiniugcs  and  forfeiture  to  the  party  aggrieved  are  prescribed  in 
secticju  1992,  Code  of  Civil  Procedure. 

6202.  ir/cu  iny/nnnent  imjrroperly  certified,  party  may  have  action  to  correct  error. 
Sec  1202.  AVlieu  the  acknowledgment  or  proof  of  the  execution  of  an  in- 
strument is  properly  made,  but  defectively  certified,  any  party  interested  may 
have  an  action  in  the  district  court  to  obtain  a  judgment  correcting  the  cer- 
tificate. 

6203.  Art  ion  to  ohtain  jadgmcnt  (f  proof  of  an  instrument. 

Sec  1203.  Any  person  interested  under  an  instrument  entitled  to  be  proved 

in)  The  orijfinal  Bcctlou   ha<l   an  B<UIitii)nal  Hiibdi-     the  person  who  executca  the  instrumcut,  uud  that  his 
hiori  (in  f(.nowH:  ,  fiignuture  is  genuine." 

"  0.  That  the  witncsH  toHtifjiug  knew  the  signature  of 

712 


TRANSFER.  6203-G216 

for  record  may  institute  an  action  in  the  district  court  against  the  proi^er  parties 
to  obtain  a  judgment  proving  such  instrument. 

6204.  Effect  of  judgment  in  such  action. 

Sec.  1204.  A  certified  copy  of  the  judgment  in  a  proceeding  instituted  under 
either  of  the  tAVO  preceding  sections,  showing  the  proof  of  the  instrument,  and 
attached  thereto,  entitles  such  iustiniment  to  record,  with  like  effect  as  if 
acknowledged. 

6205.  Conveyances  heretofore  made  to  he  governed  by  then  existing  laios. 

Sec  1205.  The  legality  of  the  execution,  acknowledgment,  proof,  form,  or 
record  of  any  conveyance  or  other  instrument  made  before  this  code  goes  into 
effect,  executed,  acknowledged,  proved,  or  recorded  is  not  affected  by  anything 
contained  in  this  chapter,  but  depends  for  its  vahdity  and  legality  upon  the 
laws  in  force  when  the  act  was  performed. 

6206.  Recording ,  and  as  evidence,  to  he  governed  hy  then  exiding  laivs. 

Sec.  1206.  All  conveyances  of  real  property  made  before  this  code  goes  into 
effect,  and  acknowledged  or  proved  accordiug  to  the  laws  in  force  at  the  time 
of  such  making  and  acknowledgment  or  proof,  have  the  same  force  as  evidence, 
and  may  be  recorded  in  the  same  manner  and  with  the  like  effect,  as  convey- 
ances executed  and  acknowledged  in  pursuance  of  this'chapter. 

6207.  Record  as  notice. — Certified  copies  as  evidence. 

Sec  1207.  Any  instrument  affecting  real  property,  which  was,  previous  to 
the  thirtieth  day  of  January,  one  thousand  eight  hundred  and  seventy-three, 
copied  into  the  proper  book  of  record,  kept  in  the  office  of  any  county  recorder, 
shall  be  deemed  to  impart,  after  that  date,  notice  of  its  contents  to  subsequent 
purchasers  and  incumbrancers,  notwithstanding  any  defect,  omission,  or  infor- 
mality in  the  execution  of  the  instrument,  or  in  the  certificate  of  acknowledg- 
ment thereof,  or  the  absence  of  any  such  certificate;  but  nothing  herein  shall 
be  deemed  to  affect  the  rights  of  purchasers  or  incumbrancers  previous  to  that 
date.  Duly  certified  copies  of  the  record  of  any  such  instrument  may  be  read 
in  evidence,  with  like  effect  as  copies  of  an  instrument  duly  acknowledged  and 
recorded,  provided  it  be  first  shown  that  the  original  instrument  was  genuine. 
[New  section,  approved  March  30,  1874;  Amendments  1873-4,  228;  took  effect 
July  1,  1874. 

ARTICLE  IV. 

EFFECT    OF    RECORDING,    OR    THE    WANT    THEREOF. 

6213.  Record,  where  and  to  whom  notice. 

Sec  1213.  Every  conveyance  of  real  property,  acknowledged  or  proved,  and 
certified  and  recorded  as  prescribed  by  law,  from  the  time  it  is  filed  with  the 
recorder  for  record,  is  constructive  notice  of  the  contents  thereof  to  subsequent 
purchaser  and  mortgagees. 

6214.  Conveyances  to  he  recorded,  or  are  void,  etc. 

Sec  1214.  Every  conveyance  of  real  property  other  than  a  lease  for  a  term 
not  exceeding  one  year,  is  void  as  against  any  subsequent  purchaser  or  mort- 
gagee of  the  same  proj)erty,  or  any  part  thereof,  in  good  faith  and  for  a  valuable 
consideration,  whose  conveyance  is  first  duly  recorded. 

6215.  Conveyance  defined. 

Sec  1215.  The  term  "conveyance,"  as  used  in  sections  1213  and  1214,  em- 
braces every  instrument  in  writing  by  which  any  estate  or  interest  in  real  prop- 
erty is  created,  aliened,  mortgaged,  or  incumbered,  or  by  which  the  title  to 
any  real  property  may  be  affected,  except  wills. 

6216.  Poivers  of  attorney,  hoio  revoked. 

Sec  1216.  No  instrument  containing  a  power  to  convey  or  execute  instru- 

713 


621G-6237  CIVIL  CODE. 

ments  affecting  real  property,  which  has  been  recorded,  is  revoked  by  any  act 
of  the  party  by  whom  it  was  executed,  unless  the  instrument  containing  such 
revocation  is  also  acknowledged  or  proved,  certified  and  recorded,  in  the  same 
office  in  which  the  instrument  containing  the  power  was  recorded. 
6217.    Unrecorded  insirumenf  valid  between  the  parties. 

Sec.  1217.  An  unrecorded  insti-ument  is  valid  as  between  the  parties  thereto 
and  those  who  have  notice  thereof. 

CHAPTER  V. 

UNLAWFUL   TBANSFERS. 

6227.  Certain  instruments  void  against  purchasers,  etc. 

Sec.  1227.  Every  instrument,  other  than  a  will,  affecting  an  estate  in  real 
property,  including  every  charge  upon  real  property,  or  upon  its  rents  or 
Ijrotits,  made  with  intent  to  defraud  jirior  or  subsequent  purchasers  thereof,  or 
incumbrancers  thereon,  is  void  as  against  every  purchaser  or  incumbrancer,  for 
value,  of  the  same  property',  or  the  rents  or  profits  thereof. 

6228.  Not  void  against  purchaser  having  notice,  unless  fraud  is  mutual. 

Sec.  1228.  No  instrument  is  to  be  avoided  under  the  last  section,  in  favor  of 
a  subsequent  purchaser  or  incumbrancer  having  notice  thereof  at  the  time  his 
purchase  was  made,  or  his  lien  acquired,  unless  the  person  in  whose  favor  the 
instrument  was  made  was  privy  to  the  fraud  intended. 

6229.  Foiver  to  revok-j,  when  deemed  executed. 

Sec.  1229.  "Where  a  power  to  revoke  or  modify  an  instrument  affecting  the 
title  to,  or  the  enjoyment  of,  an  estate  in  real  property,  is  reserved  to  the 
grantor,  or  given  to  any  other  person,  a  subsequent  grant  of,  or  charge  ujjou,  the 
estate,  by  the  person  having  the  power  of  revocation,  in  favor  of  a  i3urchaser  or 
incumbrancer,  for  value,  operates  as  a  revocation  of  the  original  instrument, 
to  i\\Q  extent  of  the  power,  in  favor  of  such  purchaser  or  incumbrancer. 

6230.  Same. 

Sec.  1230.  "Where  a  person  having  a  power  of  revocation,  within  the  pro- 
visions of  the  last  section,  is  not  entitled  to  execute  it  until  after  the  time  at 
which  he  makes  such  a  grant  or  charge  as  is  described  in  that  section,  the 
power  is  deemed  to  be  executed  as  soon  as  he  is  entitled  to  execute  it. 

6231.  Other  provisions. 

Sec  1231.  Other  provisions  concerning  unlawful  transfers  are  contained 
in  Part  II,  Division  lY,  of  this  Code,  concerning  the  special  relations  of  debtor 
and  creditor. 


TITLE  Y. 


Chapter  I.  Genehai.  Phovisions C237 

II.  Homestead  of  the  Head  of  a  Family G2G2 

III.   Homeste.vd  of  Otijku  Persons G266 

CHAPTER  I. 

GENERAL   TROVISIONS. 

6237.  Uomestead,  of  what  consists. 

Sec.  1237.  The  homestead  consists  of  the  dwelling-house  in  which  the  claim- 

714 


HOMESTEADS.  G237-6245 

ant  resides,  and  the  land  on  -whicli  the  same  is  situated,  selected  as  in  this  title 
provided.  [Amendment ,  approved  March  30,  1874;  Amendments  1873-4,  228; 
Jook  effect  July  1,  1874/"' 

6238.  From  what  may  he  selected. 

Sec,  1238.  If  th^^aimant  be  married,  the  homestead  may  be  selected  from 
the  community  property,  or  the  separate  property  of  the  husband,  or  with  the 
consent  of  the  wife  from  her  separate  property.  When  the  claimant  is  not  mar- 
ried, but  is  the  head  of  a  family,  within  the  meaning-  of  section  one  thousand  two 
hundred  and  sixt^^-one,  the  homestead  may  be  selected  from  any  of  his  or  her 
property.  [Amendment,  approved  March  30,  1874;  Amendments  1873-4,  229; 
took  effect  July  1,  1874.*''' 

6239.  When  selected  fi'om  wife's  separate  estate. 

Sec.  1239.  The  homestead  cannot  be  selected  from  the  separate  property  of 
the  wife  without  her  consent,  shown  by  her  making,  or  joininj^-  in  making,  the 
declaration  of  homestead.  [Amendment,  approved  March  30, 1874;  Amendments 
1873-4,  229;  took  effect  July  1,  1874.<"> 

6240.  Exempt  from  forced  sale. 

Sec.  1240.  The  homestead  is  exempt  from  execution  or  forced  sale,  except  as 
in  this  title  provided. 

6241.  Subject  to  execution,  ivhen. 

Sec.  1241.  The  homestead  is  subject  to  execution  or  forced  sale  in  satisfac- 
tion of  judgments  obtained : 

1.  Before  the  declaration  of  homestead  was  filed  for  record,  and  which  con- 
stitute liens  upon  the  premises; 

2.  On  debts  secured  by  mechanics',  laborers',  or  vendors'  liens  uj)on  the 
premises; 

3.  On  debts  secured  by  mortgages  upon  the  premises,  executed  and  acknowl- 
edged by  the  husband,  wife,  or  an  unmarried  claimant; 

4.  On  debts  secured  by  mortgages  upon  the  premises,  executed  and  recorded 
before  the  declaration  of  homestead  was  filed  for  record.  [Amendment,  approved 
March  30,  1874;  Amendments  1873-4,  229;  took  effect  July  1,  1874.^'^' 

6242.  Hoio  conveyed  or  incumbered. 

Sec.  1242.  The  homestead  of  a  married  person  cannot  be  conveyed  or  in- 
cumbered unless  the  instrument  by  which  it  is  conveyed  or  incumbered  is 
executed  and  acknowledged  by  both  husband  and  wife. 

6243.  How  abandoned. 

Sec.  1243.  A  homestead  can  be  abandoned  only  by  a  declaration  of  abandon- 
ment, or  a  grant  thereof,  executed  and  acknowledged: 

1.  By  the  husband  and  wife,  if  the  claimant  is  married; 

2.  By  the  claimant,  if  unmarried. 

6244.  Same. 

Sec,  1244.  A  declaration  of  abandonment  is  effectual  only  from  the  time  it  is 
filed  in  the  office  in  which  the  homestead  was  recorded, 

6245.  Proceedings  on  execution  against  homestead. 

Sec.  1245.  When  an  execution  for  the  enforcement  of  a  judgment  obtained 
in  a  case  not  within  the  classes  enumerated  in  section  1241,  is  levied  upon  the 

(a)   Original  section:  (c)  Original  section: 

Sec.  12:i7.  The  homestead  consists  of  a  quantity  of  Sec.  1239   The   husband  cannot   select  a  homestea 

land,  on  which  the  claimant  resides,  selected  as  in  this  from  the  separate  property  of  the  wife, 

title  provided.  (rf)  The  original  section  in  the  first  subdivision,  in- 

(6)   Original  section:  stead  of  "  premises  "  had  the  words  "  land  out  of  which 

Sec.  1*238.  It  may  be  selected  by  the  claimant  from  the  homestead  is  carved."    In  the  second,  third  and 

any  land  in  the  possession  of  the  claimant,  or  of  the  fourth  subdivisions,  instead  of  "  premises  "  it  had  the 

husband  of  the  claimant.  word  "  land." 

715 


6245-6257  CIVIL  CODE. 

homestead,  the  judgment  creditor  may  apply  to  the  county  judge  of  the  county 
in  which  the  homestead  is  situated  for  the  appointment  of  persons  to  appraise 
the  value  thereof. 

6246.  Verified  petition. 

Sec.  1246.  The  application  must  be  made  upon  a  verified" petition,  showing: 

1.  The  fact  that  an  execution  has  been  levied  upon  the  homestead; 

2.  The  name  of  the  claimant; 

3.  That  the  value  of  the  homestead  exceeds  the  amount  of  the  homestead 
exemption. 

6247.  Filing. 

Skc.  1247.  The  petition  must  be  filed  with  the  clerk  of  the  county  court. 

6248.  Xotice. 

Sec  1218.  A  copy  of  the  joetition,  with  a  notice  of  the  time  and  place  of 
hearing,  must  be  served  upon  the  claimant,  at  least  two  dajs  before  the  hearing. 

6249.  Hearing  and  appointment  of  appraiser. 

Sec.  1249.  At  the  hearing  the  judge  may,  uj^on  proof  of  the  service  of  a  copy 
of  the  petition  and  notice,  and  of  the  facts  stated  in  the  petition,  appoint 
three  disinterested  residents  of  the  county  to  appraise  the  value  of  the  home- 
stead. 

6250.  Oath  of  appraiser. 

Sec.  1250.  The  j^ersous  a2)pointed,  before  entering  ujion  the  performance  of 
their  duties,  must  take  an  oath  to  faithfully  perform  the  same. 

6251.  View  of  premises. 

Sec.  1251.  They  must  view  the  jDremises  and  appraise  the  value  thereof,  and 
if  the  appraised  value  exceeds  the  homestead  exemption  they  must  determine 
whether  the  land  claimed  can  be  divided  without  material  injury. 

6252.  Report  of  appraisers. 

Sec.  1252.  "Within  fifteen  days  after  their  ai^pointment  they  must  make  to  the 
judge  a  report  in  Avritiug,  Avhich  report  must  show  the  appraised  value  and  their 
determination  upon  the  matter  of  a  division  of  the  land  claimed. 

6253.  Division  of  property ,  lohen. 

Sec.  1253.  If,  from  the  report,  it  appears  to  the  judge  that  the  land  claimed 
can  be  divided  without  material  injury,  he  must,  by  an  order,  direct  the  ap- 
praisers to  set  off  to  the  claimant  so  much  of  the  laud,  including  the  residence, 
as  will  amount  in  value  to  the  homestead  exemption,  and  the  execution  ma^'  be 
enforced  against  the  remainder  of  the  land. 

6254.  Sale,  ichen. 

Sec.  1254.  If,  from  the  report,  it  appears  to  the  judge  that  the  land  claimed 
exceeds  in  value  the  amount  of  the  homestead  exeuq^tion,  and  that  it  cannot 
be  divided,  he  must  make  an  order  directing  its  sale  under  the  execution. 

6255.  nids. 

Skc.  1255.  At  such  sale  no  l)id  must  be  received,  unless  it  exceeds  the  amount 
of  the  homestead  exemption. 

6256.  Ajjjjlifalion  of  proceeds  of  sale. 

Sec.  1256.  If  the  sale  is  made,  the  proceeds  thereof,  to  the  amount  of  the 
homestead  exemption,  must  be  paid  to  the  claimant,  and  the  balance  applied  to 
the  satisfaction  of  the  execution. 

6257.  Money  resulting  from  execution  sale  protected. 

Sec  1257.  The  money  paid  to  the  claimant  is  entitled,  for  the  period  of 
BEX  months  thereafter,  to  the  same  protection  against  legal  process  and  the  vol- 

716 


HOMESTEADS.  G257-G2G1 

untaiy  disposition  of  the  husband,  which  the  law   gives   to  the  homestead. 
[Ame7idment,  approved  llarch  30,  1874;  Amendments  1873-4,   230;   took  t'ffect 

Jul;/  1,  1814:.^'^ 

6258.  Compevsaiion  of  appraisers. 

Sec.  1258.  The  court  must  fix  the  compensation  of  the  appraisers,  not  to 
exceed  five  dollars  per  day  each  for  the  time  actually  engaged. 

6259.  Costs. 

Sec.  1259.  The  execution  creditor  must  pay  the  costs  of  these  proceedings  in 
the  first  instance;  but  in  the  cases  provided  for  in  sections  1253  and  1254  the 
amount  so  paid  must  be  added  as  costs  on  execution,  and  collected  accord- 
ingly. 

6260.  Who  may  select  homestead,  value  of. 

Sec.  1260.  Homesteads  may  be  selected  and  claimed: 

1.  Of  not  exceeding  five  thousand  dollars  in  value  by  any  head  of  a  family; 

2.  Of  not  exceeding  one  thousand  dollars  in  value  by  any  other  person. 

6261.  Head  of  a  family  defined. 

Sec.  1261.  The  phrase  "head  of  a  family,"  as  used  in  this  title,  includes 
"within  its  meaning: 

1.  The  husband,  when  the  claimant  is  a  married  person; 

2.  Every  person  who  has  residing  on  the  premises  with  him  or  her  and  under 
his  or  her  care  and  maintenance,  either: 

1.  His  or  her  minor  child,  or  the  minor  child  of  his  or  her  deceased  wife  or 
husband ; 

2.  A  minor  brother  or  sister,  or  the  minor  child  of  a  deceased  brother  or 
sister; 

3.  A  father,  mother,  grandfather,  or  grandmother; 

4.  The  father,  mother,  grandfather  or  grandmother  of  a  deceased  husband 
or  wife; 

5.  An  unmarried  sister,  or  any  other  of  the  relatives  mentioned  in  this  sec- 
tion who  have  attained  the  age  of  majority,  and  are  unable  to  take  care  of  or 
support  themselves.  [Amendment,  approved  March  30,  1874;  Amendments 
1873-4,  230;  took  effect  July  1,  1874.^^' 

An  Act  to  enable  certain  parties  therein  named  to  alienate  or  incumber  homesteads. 
Approved  March  25, 1874;  1873-4,  582. 

Alienation  of  homestead. 

Section  1.  In  case  of  a  homestead,  if  either  the  husband  or  wife  shall  become 
hopelessly  insane,  upon  api^lication  of  the  husband  or  wife,  not  insane,  to  the 
probate  court  of  the  county  in  which  said  homestead  is  situated,  and  upon  due 
proof  of  such  insanity,  the  court  may  make  an  order  permitting  the  husband  or 
wife,  not  insane,  to  sell  and  convey,  or  mortgage,  such  homestead. 

Notice  of  apyplicalion. 

Sec.  2.  Notice  of  the  application  for  such  order  shall  be  given  by  publication 
of  the  same,  in  a  newspaper  published  in  the  county  in  which  such  homestead 
is  situated,  if  there  be  a  newsj)aper  published  therein,  once  each  week  for  three 
successive  weeks,  prior  to  the  hearing  of  such  application,  and  a  copy  of  such 
notice  shall  also  be  served  upon  the  nearest  male  relative  of  such  insane  hus- 
band or  wife,  resident  in  this  state,  at  least  three  weeks  prior  to  such  applica- 
tion; and  in  case  there  be  no  such  male  relative  known  to  the  applicant,  a  copy 

(a)   Original  section:  (ft)  The  original  section,  instead  of  the  first  Bubdl- 

Sec.  i'lbi.  The  money  paid  to  the  claimant  is  entitled     vision  as  above,  had  two  subdivisions  as  foUowB: 

to  all  the  protection  against  legal  process  and  the  vol-         "  1.  The  husband;  2.  The  wife." 

untary  disposition  of  the  husband  which  the  law  gives 

to  the  homestead. 

717 


C2G1-G2G3  CIVIL  CODE. 

of  such  notice  shall  be  served  upon  the  public  administrator  of  the  count}-  in 
■which  such  homestead  is  situated;  and  it  is  hereby  made  the  duty  of  such 
public  administrator,  upon  being  served  with  a  copy  of  such  notice,  to  appear 
in  court  and  see  that  such  application  is  made  in  good  faith,  and  that  the  pro- 
ceedings thereon  are  fairly  conducted. 

P  Hill  on. 

Sec.  3.  Thirty  days  before  the  hearing  of  any  application  under  the  provisions 
of  this  act,  the  applicant  shall  present  and  file  in  the  court  in  which  such  appli- 
cation is  to  be  heard,  a  petition  for  the  order  mentioned  in  the  first  section  of 
this  act,  subscribed  and  sworn  to  by  the  applicant,  setting  fortJi  the  name  and 
age  of  the  insane  husband  or  wife;  the  number,  age,  and  sex  of  the  children  of 
such  insane  husband  or  wife;  a  description  of  the  premises  constituting  the 
homestead;  the  value  of  the  same;  the  county  in  which  it  is  situated;  and  such 
facts  in  addition  to  that  of  the  insanity  of  the  husband  or  wife  relating  to  the 
circumstances  and  necessities  of  the  applicant  and  his  or  her  family,  as  he  or 
she  may  rely  upon  in  support  of  the  petition. 
Order  and  effect. 

Sec.  4.  If  the  court  shall  make  the  order  provided  for  in  the  first  section  of 
this  act,  the  same  shall  be  entered  upon  the  minutes  of  the  court,  and  there- 
after an}'  sale,  conveyance,  or  mortgage  made  in  pursuance  of  such  order,  shall 
be  as  valid  and  effectual  as  if  the  property  affected  thereby  was  the  absolute 
property  of  the  person  making  such  sale,  conveyance,  or  mortgage,  in  fee 
simi)le. 
Fees. 

Sec.  5.  For  all  services  rendered  by  any  public  administrator,  under  the  pro- 
visions of  this  act,  he  shall  be  allowed  a  fee  not  exceeding  twenty  dollars,  to  be 
fixed  by  the  court,  and  the  same  shall  be  taxed  as  costs  against  the  jDerson 
making  api^lication  for  the  order  herein  provided  for. 

Sec.  6.  All  acts  and  parts  of  acts  in  conflict  with  the  provisions  of  this  act 
are  hereby  repealed. 

Sec.  7.  This  act  shall  take  effect  and  be  in  force  from  and  after  its  passage. 

CHAPTER  II. 

HOMESTEAD   OF  THE   HEAD   OF   A  FAMILY. 

6262.  Mode  of  selection. 

Sec.  12G2.  In  order  to  select  a  homestead,  the  husband  or  other  head  of  a 
family,  or  in  case  the  husband  has  not  made  such  selection,  the  wife  must 
execute  and  acknowledge,  in  the  same  manner  as  a  grant  of  real  property  is 
acknowledged,  a  declaration  of  homestead,  and  file  the  same  for  record. 
[Amendmnd ,  approved  March  30,  1874;  Amendmenlti  1873-4,  230;  look  effect  July 
1,  1874.*=" 

6263.  Di'chiratinn,  v:hat  to  contain. 

Sec.  1203.  The  declaration  of  homestead  must  contain: 

1.  A  st^itement,  showing  that  the  person  making  it  is  the  head  of  a  family; 
or,  when  the  declaration  is  made  by  the  wife,  showing  that  her  husband  has  not 
made  such  declaration,  and  that  slie  therefore  makes  the  declaration  for  their 
joint  benefit; 

2.  A  statement  that  the  person  making  it  is  residing  on  the  premises,  and 
claims  them  as  a  homestead; 

(a)  Orlfrinal  Bection:  Bteacl,  must  execute  and  acknowledge.  In   the  Bame 

Sec.  1M2.  Tho  liuKband  and  wife-,  or  either  of  them,     manner  as  a  grant  of  real  property  is  acknowledged,  a 
or  other  head  of  u  family,  in  the  selection  of  the  home-     declaration  of  homestead. 

718 


WILLS.  G2G3-G270 

3.  A  description  of  the  premises; 

4.  An  estimate  of  their  actual  cash  value.  [Amendment,  approved  March  30, 
1874;  Amendments  1873-4,  231;  took  effect  July  1,  1874. "» 

6264.  Declaration  must  be  recorded. 

Sec.  1264.  The  declaration  must  be  recorded  in  the  office  of  the  recorder  of 
the  county  in  which  the  land  is  situated. 

6265.  Homestead  right,  when  it  attaches. 

Sec.  12G5.  From  and  after  the  time  the  declaration  is  filed  for  record,  the 
premises  therein  described  constitute  a  homestead.  If  the  selection  was  made 
by  a  married  person  from  the  community  property,  the  land,  on  the  death  of 
either  of  the  spouses,  vests  in  the  survivor,  subject  to  no  other  liability  than 
such  as  exists  or  has  been  created  under  the  provisions  of  this  title;  in  other 
cases,  upon  the  death  of  the  person  whose  property  was  selected  as  a  homestead, 
it  shall  go  to  his  heirs  or  devisees,  subject  to  the  power  of  the  probate  court  to 
assign  the  same  for  a  limited  period  to  the  family  of  the  decedent;  but  in  no 
case  shall  it  be  held  liable  for  the  debts  of  the  owner,  except  as  provided  in  this 
title.  [Amendment,  approved  March  30,  1874;  Amendments  1873-4,  231;  took 
effect  July  1,  1874.'''> 

CHAPTER  III. 

HOMESTEAD    OF   OTHER   PERSONS. 

6266.  Mode  of  selection . 

Sec.  1266.  Any  person  other  than  the  head  of  a  family,  in  the  selection  of  a 
homestead,  must  execute  and  acknowledge,  in  the  same  manner  as  a  grant  of 
real  property  is  acknowledged,  a  "  declaration  of  homestead." 

6267.  Declaration  of  homestead. 

Sec  1267.  The  declaration  must  contain  everything  required  by  the  second, 
third  and  fourth  subdivisions  of  section  1263, 
6263.  Declaration  must  be  7-ecorded. 

Sec  1268.  The  declaration  must  be  recorded  in  the  office  of  the  county  re- 
corder of  the  county  in  which  the  land  is  situated. 
6269.  Effect  of  fling  for  record  the  declaration  of  homestead. 

Sec  1269.  From  and  after  the  time  the  declaration  is  filed  for  record,  the  land 
described  therein  is  a  homestead. 


TITLE  VI. 


Chapter  I.  Execution  and  Revocation  of  Wills 6270 

II.  Interpretation  of  Wills 6317 

III.  General  Provisions  Relating  to  Wills 6357 

CHAPTER  I. 

EXECUTION  AND  REVOCATION   OP  WILLS. 
6270.    Who  may  make  a  will. 

Sec  1270.  Every  person  over  the  age  of  eighteen  years,  of  sound  mind,  may, 

(a)  Original  section:  filed  for  record,  the  land  therein  described  is  a  home- 

Sfc.12G3.  The  "declaration  of  homestead"  must  con-  stead;  and  if  the  declaration  was  made  by  a  married 

tain:  1.  A  statement  of  the  facts  that  show  the  person  person,  the  land  is  thereafter  by  the  spouses  held  in 

making  it  to  be  the  head  of  afamily;  2.  Astatement  joint  tenancy,  and  on  the  d<ath  of  either  of  the  spouses, 

that  the  person  making  it  Is  residing'on  the  land,  and  and  subject  to  no  other  liability  than  such  as  exists  or 

claims  it  as  a  homestead;  3.  A  description  of  the  land;  has  been  created  under  the  provisions  of  this  title,  it 

i.  An  estimate  of  its  actual  cash  value.  dcBcends  to  and  the  title  at  ouce  vests  in  the  survivor. 

(6)  Original  section: 

Sec.  12e5.  From  and  after  the  time  the  declaration  is 

719 


6270-6278  CIVIL  CODE. 

by  last  will,  dispose  of  all  liis  estate,  real  and  personal,  and  such  estate  not  dis- 
posed of  by  will  is  succeeded  to  as  provided  in  Title  VII  of  this  Part,  being 
chargeable  in  both  cases  with  the  payment  of  all  the  decedent's  debts,  as  provided 
in  the  Code  of  Civil  Procedure. 

6271.  [Sec.  12T1<"^  was  repealed  by  act  approved  March  30,  1874;  Amend- 
ments 1873-4,  232;  took  eiiect  July  1,  1874.] 

6272.  ]I7//,  or  part  thereof,  procured  bij  fraud. 

Sec  1272.  A  will,  or  jiart  of  a  will,  procured  to  be  made  by  duress,  menace, 
fraud,  or  undue  influence,  may  be  denied  probate;  and  a  revocation,  j)rocured 
by  the  same  means,  may  be  declared  void. 

6273.  Harried  ivoman  may  dispose  of  separate  estate  by  toill. 

Sec,  1273.  A  married  woman  may  dispose  of  all  her  separate  estate  hj  will, 
without  the  consent  of  her  husband,  and  may  alter  or  revoke  the  will  in  like 
manner  as  if  she  were  single.  Her  will  must  be  executed  and  proved  in  like 
manner  as  other  wills.  [Amendment,  approved  March  30,  1874;  Amendments 
1878-4,  232;  took  effect  July  1,  1874.<''> 

6274.  What  may  pass  by  xoill. 

Sec  1274.  Evexy  estate  and  interest  in  real  or  personal  property',  to  which 
heirs,  husband,  widow,  or  next  of  kin  might  succeed,  may  be  disposed  of  by 
will,  except  as  otherwise  provided  in  sections  1401  and  1402. 

6275.  117(0  may  take  by  will. 

Sec  1275.  A  testamentary  disj)osition  may  be  made  to  any  person  callable 
by  law  of  taking  the  proj)erty  so  disposed  of,  except  corporations  other  than 
those  formed  for  scientific,  literary,  or  solely  educational  purposes,  cannot  take 
under  a  will,  unless  expressly  authorized  by  statute.  [Amendment,  approved 
Januai'y  29,  1874;  Amendments  1873-4,  275;  took  effect  from  passage.'-"^ 

6276.  Written  xoill,  how  to  be  executed. 

Sec  127G.  Every  will,  other  than  a  nuncuj)ative  will,  must  be  in  writing;  and 
every  will,  other  than  an  olographic  Avill,  and  a  nuncupative  will,  must  be 
executed  and  attested  as  follows: 

1.  It  must  be  subscribed  at  the  end  thereof  by  the  testator  himself,  or  some 
person  in  his  presence  and  by  his  direction  must  subscribe  his  name  thereto; 

2.  The  subsci-ijition  must  be  made  in  the  jiresence  of  the  attesting  witnesses, 
or  be  acknowledged  by  the  testator  to  them,  to  have  been  made  by  him  or  by 
his  authority; 

3.  The  testator  must,  at  the  time  of  subscribing  or  acknowledging  the  same, 
declare  to  the  attesting  witnesses  that  the  instrument  is  his  will;  and, 

4.  There  must  be  two  attesting  witnesses,  each  of  whom  must  sign  his  name 
as  a  witness,  at  the  end  of  the  will,  at  the  testator's  request,  and  in  his  presence. 

6277.  Definition  of  an  olographic  will. 

Sec.  1277.  An  olographic  will  is  one  that  is  entirely  written,  dated,  and  signed 
by  the  hand  of  the  testator  himself.  It  is  subject  to  no  other  form,  and  may  be 
made  in  or  out  of  this  state,  and  need  not  be  witnessed. 

6278.  Witness  to  add  r-esidence. 

Sec.  1278.  A  witness  to  a  written  will  must  write,  with  his  name,  his  place  of 
residence;  and  a  person  who  subscribes  the  testator's  name,  by  his  direction, 
must  write  his  own  name  as  a  witness  to  the  will.  But  a  violation  of  this  section 
does  not  affect  the  validity  of  the  will. 

(a)  Repealed  section:  (c)   Original  section: 

Sec.  1271.  A  i)erson   having  any  insane   delusion  is  Sk<:.  127.5.  A  tcstmiientaiT  disposition  may  be  made 

incompetent  to  make  a  will.  to  any  ijersou  callable  by  law  of  taking  tbe  property  so 

(6)  Tbe  original  section   differed   in   tbe   lai^t  sen-  disposed  of,  except  that  no  corporation  can  take  under 

tence,  which  was  as  follows:  "Her  will  must  be  at-  a  will,  uulesB  exin-essly  authorized  by  statute  so  to 

tested,  witnessed,  and  jjroved  in  like  manner  as  all  take, 
other  ■vs-ills." 

720 


WILLS.  6279-6288 

6279.  Mutual  will. 

Sec.  1279.  A  conjoint  or  mutual  will  is  valid,  but  it  may  be  revoked  by  any 
of  the  testators,  in  like  manner  with  any  other  will. 

6280.  Competency  of  subscribing  ivifness. 

Sec.  1280.  If  the  subscribing  witnesses  to  a  will  are  competent  at  the  time  of 
attesting  its  execution,  their  subsequent  incompetency,  from  whatever  cause  it 
may  arise,  does  not  prevent  the  jorobate  and  allowance  of  the  Avill,  if  it  is  other- 
wise satisfactorily  proved. 

6281.  Conditional  will. 

Sec  1281.  A  will,  the  validity  of  which  is  made  by  its  own  terms  conditional, 
may  be  denied  probate,  according  to  the  event,  with  reference  to  the  condition. 

6282.  Gifts  to  subscribing  witnesses  void. 

Sec.  1282.  All  beneiicial  devises,  legacies  and  gifts  whatever,  made  or  given 
in  any  will  to  a  subscribing  witness  thereto,  are  void,  unless  there  are  two  other 
competent  subscribing  witnesses  to  the  same;  but  a  mere  charge  on  the  estate 
of  ^the  testator  for  the  payment  of  debts  does  not  jprevent  his  creditors  from 
being  competent  witnesses  to  his  will. 

6283.  Witness,  ivho  is  devisee,  rights  of. 

Sec.  1283.  If  a  witness,  to  whom  any  beneficial  de\dse,  legacy  or  gift,  void  by 
the  preceding  section,  is  made,  would  have  been  entitled  to  any  share  of  the 
estate  of  the  testator,  in  case  the  will  should  not  be  established,  he  succeeds  to 
so  much  of  the  share  as  would  be  distributed  to  him,  not  exceeding  the  devise 
or  bequest  made  to  him  in  the  will,  and  he  may  recover  the  same  of  the  other 
devisees  or  legatees  named  in  the  will,  in  proportion  to  and  out  of  the  parts 
devised  or  bequeathed  to  them.  [Amendment,  approved  March  30, 1874;  Amend- 
ments 1873-4,  232;  took  effect  July  1,  1874.''''' 

6284.  [Sec.  1284""  was  repealed  by  act  approved  March  30, 1874;  Amendments 
1873-4,  232;  took  effect  July  1,  1874.J 

6285.  Will  made  out  of  state. 

Sec  1285.  No  will  made  out  of  this  state  is  valid  as  a  will  in  this  state, 
unless  executed  according  to  the  provisions  of  this  chapter.  [Amendment,  ap- 
proved March  30,  1874;  Amendments  1873-4,  232;  took  effect  July  1,  1874.^''' 

6286. 

[Sec  1286"^'  was  repealed  by  act  approved  March  30,  1874;  Amendments 
1873-4,  232;  took  effect  July  1,  1874.  J 

6287.  Pkcpublication  by  codicil. 

Sec  1287.  The  execution  of  a  codicil,  referring  to  a  previous  will,  has  the 
effect  to  republish  the  will,  as  modified  by  the  codicil. 

6288.  Nuncupative  loill,  liow  to  be  executed. 

Sec  1288.  A  nuncupative  will  is  not  required  to  be  in  writing,  nor  to  be 
declared  or  attested  with  any  formalities. 

(a)  Original  section:  (c)   Original  section: 

Sec.  12fca.  If  a  witness,  to  whom  any  beneficial  de-  Sec.  12bo.  No  will  or  revocation  is  valid  unless  exe- 
vise,  legacy,  or  gift,  is  made  or  given,  would  have  been  cuted  either  according  to  the  provisions  of  this  chap- 
entitled  to  any  share  of  the  estate  of  the  testator,  in  ter,  or  according  to  the  law  of  the  place  in  which 
case  the  will  is  not  established,  he  succeeds  to  so  it  was  made,  or  in  which  the  testator  was  at  the  time 
much  of  the  share  as  would  be  distributed  to  him,  not  domiciled, 
exceeding  the  devise  or  bequest  made  to  him  in  the  (d)  Kejiealed  section: 

will;  ana  he  may  recover  the  same  of  the  devisees  or  Sec.  12o6.  Whenever  a  will,  or  a  revocation  thereof, 

legatees  uamed  in  the  will,  in  proportion  to  and  out  of  is  duly  executed  according  to  the  law  of  the  place  in 

the  xjarts  devised  or  bequeathed  to  them.  which  the  same  was  made,  or  in  which  the  testator  was 

(b)  Kejjealed  section:  at  the  time  domiciled,  the  same  is  regulated,  as  to  the 
Sec.  VMi.  A  will  of  real  or  ijersonal  property,  or  both,  validity  of  its  execution,  by  the  law  ol  such  place,  not- 

*T  a  revocation  thereof,  made  out  of  tnis  state  by  a  per-      withstanding  that  the  testator  subsequently  changed 
Bon  not  having  his  domicile  in  this  state,  is  as  valid,     his  domicile  to  a  place  by  the  law  of  which  such  will 
when  executed  according  to  the  law  of  the  x^lace  in     would  be  void, 
which  the  same  was  made,  or  in  which  the  testator 
was  at  the  time  domiciled,  as  if  it  were  made  in  this 
state,  and  according  to  the  provisions  of  this  chapter. 

46  721 


6289-6296  CIYIL  CODE. 

6289.  BequisUes  of  valid  nuncupative  ivill. 

Sec.  1289.  To  make  a  uuncupative  will  valid,  and  to  entitle  it  to  be  admitted 
to  i^robate,  the  following  requisites  must  be  observed: 

1.  The  estate  bequeathed  must  not  exceed  in  value  the  sum  of  one  thousand 
dollars; 

2.  It  must  be  proved  by  two  witnesses  who  were  present  at  the  making 
thereof,  one  of  whom  was  asked  by  the  testator,  at  the  time,  to  bear  witness  that 
such  was  his  will,  or  to  that  effect; 

3.  The  decedent  must,  at  the  time,  have  been  in  actual  military  service  in  the 
field,  or  doing  duty  on  shijjboard  at  sea,  and  in  either  case  in  actual  contem- 
plation, fear,  or  peril  of  death;  or  the  decedent  must  have  been,  at  the  time, 
iu  expectation  of  immediate  death  from  an  injury  received  the  same  day. 
[Amoidment,  approved  March  30, 187J:;  AmendmetUs  1873-4,  233;  look  effect  July 
1,  1874.'^> 

6290.  Proof  of  nuncupative  wills. 

Sec.  1290.  No  proof  must  be  received  of  any  nuncupative  will,  unless  it  is 
offered  within  six  months  after  speaking  the  testamentary  words,  nor  unless  the 
words,  or  the  substance  thereof,  were  reduced  to  writing  within  thirty  da3's  after 
they  were  spoken. 

6291.  Probate  of  nuncupative  wills. 

Skc.  1291.  No  probate  of  any  nuncupative  will  must  be  granted  for  fourteen 
days  after  the  death  of  the  testator,  nor  must  any  nuncupative  will  be  at  any 
time  proved,  unless  the  testamentary  words,  or  the  substance  thereof,  be  first 
committed  to  writing,  and  jJi'ocess  issued  to  call  in  the  widow,  or  other  persons 
interested,  to  contest  the  probate  of  such  will,  if  they  think  proper. 

6292.  Written  will,  how  revoked. 

Sec.  1292.  Except  in  the  cases  in  this  chapter  mentioned,  no  written  will,  nor 
any  part  thereof,  can  be  revoked  or  altered  otherwise  than: 

1.  B}'  a  written  will,  or  other  writing  of  the  testator,  declaring  such  revoca- 
tion or  alteration,  and  executed  with  the  same  formalities  with  Avhich  a  will 
should  be  executed  by  such  testator;  or, 

2.  By  being  burnt,  torn,  canceled,  obliterated,  or  destroyed,  with  the  intent 
and  for  the  purpose  of  revoking  the  same,  by  the  testator  himself,  or  by  some 
person  in  his  presence  and  by  his  direction. 

6293.  Ecidence  of  revocation. 

Sec.  1293.  When  a  will  is  canceled  or  destroyed  by  any  other  person  than  the 
testator,  the  direction  of  the  testator,  and  the  fact  of  such  injury  or  destruc- 
tion, must  be  proved  by  two  witnesses. 

6294.  [Sec  1294""  was  repealed  by  act  approved  March  30, 1874;  Amendments 
1873-4,  233;  took  effect  July  1,  1874.] 

6295.  Jicvocalion  of  duplicate. 

Sec.  1295.  The  revocation  of  a  Avill,  executed  in  duplicate,  may  be  made  by 
revoking  one  of  the  duplicates. 
62C6.  Pcvocation  by  sabsfquent  will. 

Sec.  1296.  A  prior  will  is  not  revoked  by  a  subseqiient  will,  unless  the  latter 

(n)  The  original  section  lia<l  four  Biilidivisions.   The  (h)  Repealed  geetion: 

flrat  uud  Bcroud  were  the  Huiiie  uh  in  the  uiueudnieut.  Sko   I'J'.ll.  .\  revocation  by  obliteration  on  the  face 

The  tliird  and  fourth  were  uk  follows:  of  the  will  niuy  be  partial  or  total,  and  is  complete  if 

"a    The  decedent  uiuht,  at  the  time,  hirve  been  In  the  material  jjart  is  so  obliterated  aB  to  show  an  iuteu- 

hlfi  laht  illncKK,  or  iu  mtual   militiry  service  in   the  tiou  to  revoke;  but  where,  in  order  to  effect  a  new  dis- 

field,  or  doing  duty  on  Bhijiboard  at  Ben,  and  in  either  position,  the  testator  attempts  to  revoke  a  i)rovision  of 

case  iu  aetuil  contemplatii  II.  fear,  or  peril  of  dentil;  the   will,  by   altering  or  obliterating  it  ou  the  face 

"4    Exi-ept  in  the  i-uHes  mentioned  iu  subdivisions  thereof .  sucli  revocation  is  not  valid  unless  the  now 

ol  this  se(  tiou,  it  must  be  made  at  the  dwelling-house  disposition  is  legally  effected, 
of  th"  ti  ht:itor,  or  where  he  was  rei-iding  for  tlie  space 
of  ten  d:iys  or  more,  uuless  taken  sick  from  home  aud 
death  endues  before  his  return." 

722 


WILLS.  G29G-fi304 

contains  .an  express  revocation,  or  i')rovisions  wlioll}' inconsistent -witli  tlie  terms 
of  the  former  will;  but  in  other  cases  the  prior  will  remains  eflectual  so  far  as 
consistent  with  the  provisions  of  the  subsequent  will. 

6297.  Antecedoit  nol  revived  bij  revoealion  of  siibsequciU  xoill. 

Sec.  1297.  If,  after  making  a  will,  the  testator  duly  makes  and  executes  a 
second  will,  the  destruction,  cancellation,  or  revocation  of  such  second  will 
does  not  revive  the  first  will,  unless  it  appears  by  the  tei'ms  of  such  revocation 
that  it  was  the  intention  to  revive  and  give  effect  to  the  first  wull,  or  unless, 
after  such  destruction,  cancellation,  or  revocation,  the  first  will  is  duly  repub- 
lished. 

6298.  Revocation  by  marriage  and  birth  of  issue. 

Sec  1298.  If,  after  having  made  a  will,  the  testator  marries,  and  has  issue 
of  such  marriage,  born  either  in  his  lifetime  or  after  his  death,  and  the  wife  or 
issue  survives  him,  the  will  is  revoked,  unless  provision  has  been  made  for  such 
issue  by  some  settlement,  or  unless  such  issue  are  provided  for  in  the  will,  or 
in  such  way  mentioned  therein  as  to  show  an  intention  not  to  make  such  pro- 
vision; and  no  other  evidence  to  rebut  the  presumption  of  such  revocation  can 
be  received. 

6299.  Effect  of  marriage  of  a  man  on  histwill. 

Sec.  1299.  If,  after  making  a  will,  the  testator  marries,  and  the  wife  survives 
the  testator,  the  will  is  revoked,  unless  provision  has  been  made  for  her  by 
marriage  contract,  or  unless  she  is  provided  for  in  the  will,  or  in  such  way  men- 
tioned therein  as  to  show  an  intention  not  to  make  such  provision;  and  no  other 
evidence  to  rebut  the  presumption  of  revocation  must  be  received. 

6300.  Effect  of  a  marriage  of  a  ivoman  on  her  xoill. 

Sec.  1300.  A  will,  executed  by  an  unmarried  woman,  is  revoked  by  her  sub- 
sequent marriage,  and  is  not  revived  by  the  death  of  her  husband. 

6301.  Contract  of  sale  not  a  revocation. 

Sec.  1301.  An  agreement  made  by  a  testator  for  the  sale  or  transfer  of  property 
disposed  of  by  a  will  previously  made,  does  not  revoke  such  disi:)Osal ;  but  the 
property  passes  by  the  will,  subject  to  the  same  remedies  on  the  testator's 
agreement,  for  a  specific  performance  or  otherwise  against  the  devisees  or  lega- 
tees, as  might  be  had  against  the  testator's  successors,  if  the  same  had  passed 
by  succession. 

6302.  Mortgage  not  a  revocation  of  will. 

Sec  1302.  A  charge  or  incumbrance  uj^on  any  estate,  for  the  purpose  of 
securing  the  payment  of  money  or  the  performance  of  any  covenant  or  agree- 
ment, is  not  a  revocation  of  any  will  relating  to  the  same  estate  which  was 
previously  executed;  but  the  devise  and  legacies  therein  contained  must  pass, 
subject  to  such  charge  or  incumbrance. 

6303.  Conveyance,  when  not  a  revocation. . 

Sec  1303.  A  conveyance,  settlement,  or  other  act  of  a  testator,  by  which  his 
interest  in  a  thing  previously  disposed  of  by  his  will  is  altered,  but  not  wholly 
divested,  is  not  a  revocation;  but  the  will  passes  the  property  which  would 
otherwise  devolve  by  succession. 

6304.  When  it  is  a  revocation. 

Sec  1304.  If  the  instrument  by  which  an  alteration  is  made  in  the  testator's 
interest  in  a  thing  previously  disposed  of  by  his  will  expresses  his  intent  that 
it  shall  be  a  revocation,  or  if  it  contains  provisions  wholly  inconsistent  with  the 
terms  and  nature  of  the  testamentary  disposition,  it  operates  as  a  revocation 
thereof,  unless  such  inconsistent  provisions  depend  on  a  condition  or  contin- 
gency by  reason  of  which  they  do  not  take  effect. 

723 


6305-0312  CIVIL  CODE. 

6305.  Eevocatiori  or  codinh. 

Sec.  1305.  Tlie  revocation  of  a  will  revotes  all  its  codicils. 

6306.  Afterhorn  child,  unprovided  for ,  to  succeed . 

Sec.  1306.  'Wbenever  a  testator  has  a  child  bom  after  the  making  of  his  will, 
either  in  his  lifetime  or  after  his  death,  and  dies  leaving  such  child  unprovided 
for  by  any  settlement,  and  neither  provided  for  nor  in  any  vvay  mentioned  in 
his  will,  the  child  succeeds  to  the  same  portion  of  the  testator's  real  and  j^er- 
sonal  property  that  he  would  have  succeeded  to  if  the  testator  had  died  intes- 
tate. 

6307.  Children,  or  issue  of  children  of  testator  unprovided  for  by  his  icill. 

Sec  1307.  "When  any  testator  omits  to  provide  in  his  will  for  any  of  his  chil- 
dren, or  for  the  issue  of  any  deceased  child,  unless  it  appears  that  such  omission 
was  intentional,  such  child,  or  the  issue  of  such  chUd,  must  have  the  same 
share  in  the  estate  of  the  testator  as  if  he  had  died  intestate,  and  succeeds 
thereto  as  provided  in  the  preceding  section. 

6308.  Share  ofafferbom  child,  out  of  ichat  part  of  estate  to  be  paid. 

Sec.  1308.  When  any  share  of  the  estate  of  a  testator  is  assigned  to  a  child 
bom  after  the  making  of  a  will,  or  to  a  child,  or  the  issue  of  a  child,  omitted  in 
the  will,  as  hereinbefore  mentioned,  the  same  must  first  be  taken  from  the  estate 
not  disposed  of  by  the  will,  if  any;  if  that  is  not  sufficient,  so  much  as  may  be 
necessary  must  be  taken  from  all  the  devisees  or  legatees,  in  proportion  to  the 
value  they  may  respectively  receive  under  the  will,  unless  the  obvious  intention 
of  the  testator  in  relation  to  some  specific  devise  or  bequest,  or  other  provision 
in  the  will,  would  thereby  be  defeated ;  in  such  case,  such  specific  devise, 
legacy,  or  provision,  may  be  e:sempted  from  such  apportionment,  and  a  different 
apportionment,  consistent  with  the  intention  of  the  testator,  may  be  adopted. 

6309.  Advancement  during  lifetime  of  testator. 

Sec.  1309.  If  such  children,  or  their  descendants,  so  unprovided  for,  had  an 
equal  proportion  of  the  testator's  estate  bestowed  on  them  in  the  testator's  life- 
time, by  way  of  advancement,  they  take  nothing  in  virtue  of  the  provisions  of 
the  three  preceding  sections. 

6310.  Death  of  devisee,  being  relation  of  testator  in  lifetime  of  testator,  leaving 

lineal  descendants. 
Sec.  1310.  TVhen  any  estate  is  devised  to  any  child,  or  other  relation  of  the 
testator,  and  the  devisee  dies  before  the  testator,  leaving  lineal  descendants, 
such  descendants  take  the  estate  so  given  by  the  will,  in  the  same  manner  as 
the  devisee  would  have  done  had  he  survived  the  testator. 

6311.  Devises  of  land,  how  construed. 

Sec.  1311.  Every  devise  of  land  in  any  will  conveys  all  the  estate  of  the 
devisor  therein,  which  he  could  lawfully  devise,  unless  it  clearly  appears  by  the 
will  that  he  intended  to  convey  a  less  estate. 

6312.  Will  passes  after-acquired  estates. 

Sec.  1312.  Any  estate,  right,  or  interest  in  lands  acquired  by  the  testator 
after  the  making  of  his  will,  passes  thereby  and  in  like  manner  as  if  title  thereto 
was  vested  in  him  at  the  time  of  making  the  will,  unless  the  contrary  mani- 
festly appears  by  the  will  to  have  been  the  intention  of  the  testator.  Every 
•will  made  in  express  terms  devising,  or  in  any  other  terms  denoting  the  intent 
of  the  testator  to  de-^nse  all  the  real  estate  of  such  testator,  passes  all  the  real 
estate  which  such  testator  was  entitled  to  devise  at  the  time  of  his  decease. 
[Amendment,  approved  March  30,  1874;  Amendments  1873-i,  233;  took  effect 
July  1,  1874.''> 

(aj  The  original  section,  insUad  of  "  nnlesB  the  contrary,"  had  the  words  "  if  it." 

724 


TVILLS.  6313-€325 

6313.  Eentriction  on  power  of  device  to  cJuirUable  rises. 

Szc.  1313.  No  estate,  real  or  personal,  shall  be  bequeathed  or  devised  to  anv 
charitable  or  benevolent  society,  or  corporation,  or  to  any  person  or  persons  in 
tnist  for  charitable  uses,  except  the  same  be  done  by  will  duly  executed  at  least 
thiiiy  days  before  the  decease  of  the  testator;  and  if  so  made,  at  least  thirti.- 
days  prior  to  such  death  such  devise  or  legacy,  and  each  of  them,  shall  be 
valid;  provided,  that  no  such  devises  or  l>equests  shall  collectively  exceed  one 
third  of  the  estate  of  the  testator  leaving  legal  heirs,  and  in  such  case  a  pro  rata 
deduction  from  such  devises  or  bequests  shall  be  made  so  as  to  reduce  the 
aggiegate  thereof  to  one  third  of  such  estate;  and  all  dispositions  of  property 
made  contrary  hereto  shall  be  void,  and  go  to  the  residuary  legatee  or  devisee, 
next  of  kin,  or  heirs,  according  to  law.  [Xew  section,  approved  March  18,  1874; 
AmendrnenU  1873-4,  275;  iooJc  effect  from  passage. 

CHAPTER  n. 

IXTEEPBETATIOX  OF   WILLS,    AND  EFFECT   OF   TAPJOrS  PEOTISIOXS. 

6317.  Testator's  intention  to  be  carried  out. 

Sec.  1317.  A  will  is  to  be  construed  according  to  the  intention  of  the  testa- 
tor. "Where  his  intention  cannot  have  effect  to  its  full  extent,  it  must  have 
effect  as  far  as  possible. 

6318.  Intention  to  be  ascertained  from  the  will. 

Sec.  1318.  In  case  of  uncertainty  arising  upon  the  face  of  a  will,  as  to  the 
application  of  any  of  its  provisions,  the  testator's  intention  is  to  be  ascertained 
from  the  words  of  the  will,  taking  into  view  the  circumstances  under  which  it 
was  made,  exclusive  of  his  oral  declarations. 

6319.  Bides  of  interpretation. 

Sec.  1319.  In  interpreting  a  will,  subject  to  the  law  of  this  state,  the  rules 
l^rescribed  by  the  following  sections  of  this  chapter  are  to  be  observed,  unless 
an  intention  to  the  contrary  clearly  appears. 

6320.  Several  instruments  are  to  be  taken  together. 

Sec.  1320.  Several  testamentary  instruments,  executed  by  the  same  testator, 
are  to  be  taken  and  construed  together  as  one  instrument. 

6321.  Hormonizing  various  parts. 

Sec.  1321.  All  the  parts  of  a  will  are  to  be  construed  in  relation  to  each  other, 
and  so  as,  if  possible,  to  form  one  consistent  whole;  but  where  several  parts 
are  absolutely  irreconcilable,  the  latter  must  prevail- 

6322.  In  what  case  devise  not  affected. 

Sec  1322.  A  clear  and  distinct  devise  or  bequest  cannot  be  affected  by  any 
reasons  assigned  therefor,  or  by  any  other  words  not  equally  clear  and  distinct, 
or  by  inference  or  argument  from  other  parts  of  the  wdl,  or  by  an  inaccurate 
recital  of  or  reference  to  its  contents  in  another  part  of  the  wiU. 

6323.  When  ambiguous  or  doubtful. 

Sec.  1323.  "WTiere  the  meaning  of  any  part  of  a  will  is  ambiguous  or  doubt- 
ful, it  may  be  explained  by  any  reference  thereto,  or  recital  thereof  in  another 
part  of  the  will. 

6324.  Words  taken  in  ordinary  sense. 

Sec.  1324.  The  words  of  a  wiQ  are  to  be  taken  in  their  ordinary  and  gram- 
matical sense,  unless  a  clear  intention  to  use  them  in  another  sense  can  be  col- 
lected, and  that  other  can  be  ascertained. 

6325.  TTortfe  to  receive  an  op^erative  construction. 

Sec.  1325.  The  words  of  a  will  are  to  receive  an  interpretation  which  will 

725 


6325-G336  CIYIL  CODE. 

give  to  eveiT  expression  some  effect,  ratber  than  one  wliicli  will  render  any  of 
the  expressions  inoperative. 

6326.  Intestacy  to  he  avoided. 

Skc.  132G.  Of  two  modes  of  interpreting  a  will,  tliat  is  to  be  preferred  which 
will  i^revent  a  total  intestacy. 

6327.  Effect  of  technical  ivords. 

Sec.  1327.  Technical  words  in  a  will  are  to  be  taken  in  their  technical  sense, 
unless  the  context  clearly  indicates  a  contrary  intention. 

6328.  Technical  woi^ds  not  necessary. 

Sec.  1328.  Technical  words  are  not  necessary  to  give  effect  to  any  species  of 
dis]iosition  by  a  will. 

6329.  Certain  tcords  not  rtecessary  to  jjass  a  fee. 

Sec  1329.  The  term  "  heirs,"  or  other  words  of  inheritance,  are  not  requisite 
to  devise  a  fee,  and  a  devise  of  real  projoerty  passes  all  the  estate  of  the  testa- 
tor, unless  otherwise  limited. 

6330.  Power  to  devise,  hoiv  executed  by  tey^ms  of  iviU. 

Sec.  1330.  Real  or  personal  property  embraced  in  a  power  to  devise,  passes 
by  a  will  jmrporting  to  devise  all  the  real  or  personal  property  of  the  testator. 

6331.  Devise  or  bequest  of  all  real  or  all  person aVpropert y ,  or  both. 

Sec.  1331.  A  devise  or  bequest  of  all  the  testator's  real  or  personal  property, 
in  express  terms,  or  in  any  other  terms  denoting  his  intent  to  dispose  of  all  his 
real  or  personal  jiroperty,  passes  all  the  real  or  personal  property  which  he  was 
entitled  to  dispose  of  by  will  at  the  time  of  his  death. 

6332.  Devise  of  residue,  ichaf  jyasses. 

Sec  1332.  A  devise  of  the  residue  of  the  testator's  real  property  passes  all 
the  real  property  which  he  was  entitled  to  devise  at  the  time  of  his  death,  not 
otherwise  effectually  devised  by  his  will.  [Amendment,  aj^i^roved  March  30, 
1874;  Amendments  1873-4,  234;  took  effect  July  1,  1874.'*' 

6333.  Same. 

Sec  1333.  A  bequest  of  the  residue  of  the  testator's  personal  property,  j^asses 
all  the  personal  property  which  he  was  entitled  to  bequeath  at  the  time  of  his 
death,  not  otherwise  effectually  bequeathed  by  his  will.  [Amendment,  approved 
MarchZi),  1874;  Amendments  1^1^-4:,  234;  took  effect  July  1,  1874.<'" 

6334.  "Heirs,"  " relatives,"  " issue,"  "descendants,"  etc. 

Sec.  1334.  A  testamentary  disposition  to  "heirs,"  "relations,"  "nearest 
relations,"  "representatives,"  "legal  rejiresentatives,"  or  "personal  represent- 
atives," or  "famil}^,"  "issue,"  "descendants,"  "nearest"  or  "next  of  kin"  of 
any  person,  without  other  words  of  qualification,  and  when  the  terms  are  used 
as  words  of  douation,  and  not  of  limitation,  vests  the  property  in  those  who 
would  be  entitled  to  succeed  to  the  jnoperty  of  such  person,  according  to  the 
provisions  of  the  title  on  succession,  in  this  code. 

6335.  Words  of  donation  and  of  limitation. 

Sec  1335.  The  terms  mentioned  in  the  last  section  are  used  as  words  of  dona- 
tion, and  not  of  limitation,  when  the  proiierty  is  given  to  the  person  so  des- 
ignated, directly,  and  not  as  a  qualification  of  an  estate  given  to  the  ancestor 
of  such  person. 

6336.  7b  what  lime  rrnrds  refer. 

Sec  1330.  AVords  in  a  will  referring  to  death  or  survivorship,  simply,  relate 
to  the  time  of  the  testator's  death,  unless  possession  is  actually  posti)oned, 
when  they  must  be  referred  to  the  time  of  possession. 

(a)  The  original  H'-ction,  after  "  teBtutor's,"  liutl  the  (ft)  The  origlnnl  Bcction,  after  "  testator's,"  had  the 
words  "  estate,  x^roiierty,  or."  words  "  estate,  iiroperty,  or." 

726 


WILLS.  6337-6348 

6337.  DeviHe  or  bequest  to  a  class. 

Sec.  1337.  A  testamentary  disposition  to  a  class  includes  every  person  an- 
swering- the  description  at  the  testator's  death;  but  when  the  possession  is  post- 
poned to  a  future  jjeriod,  it  includes  also  all  persons  coining  within  the  descrip- 
tion before  the  time  to  which  possession  is  postponed. 

6338.  WJum  conversion  takes  effect. 

Sec  1338.  When  a  will  directs  the  conversion  of  real  property  into  money, 
such  property  and  all  its  proceeds  must  be  deemed  personal  property  from  the 
time  of  the  testator's  death. 

6339.  When  child  born  after  testator's  death  takes  under  ivill. 

Sec.  1339.  A  child  conceived  before,  but  not  born  until  after  a  testator's 
death,  or  any  other  period  when  a  disposition  to  a  class  vests  in  right  or  in 
possession,  takes,  if  answering  to  the  description  of  the  class. 

6340.  Mistakes  and  omissions. 

Sec.  1340.  When,  appljdng  a  will,  it  is  found  that  there  is  an  imperfect  de- 
scription, or  that  no  person  or  property  exactly  answers  the  description,  mis- 
takes and  omissions  must  be  corrected,  if  the  error  appears  from  the  context  of 
the  will  or  from  extrinsic  evidence;  but  evidence  of  the  declarations  of  the  tes- 
tator as  to  his  intentions  cannot  be  received. 

6341.  When  devises  and  bequests  vest. 

Sec.  1341.  Testamentary  dispositions,  including  devises  and  bequests  to  a 
person  on  attaining  majority,  are  presumed  to  vest  at  the  testator's  death. 

6342.  When  cannot  be  divested. 

Sec  1342.  A  testamentary  disposition,  when  vested,  cannot  be  divested  unless 
upon  the  occurrence  of  the  precise  contingency  prescribed  by  the  testator  for 
that  purpose. 

6343.  Death  of  devisee  or  legatee,  before  testator. 

Sec  1343.  If  a  devisee  or  legatee  dies  during  the  lifetime  of  the  testator,  the 
testamentary  disposition  to  him  fails,  unless  an  intention  appears  to  substitute 
some  other  in  his  place,  except  as  provided  in  section  thirteen  hundred  and  ten. 
[Amejidment,  approved  March  ?>0, 1874;  Amendmentsl^l^-4:,  234;  took  effect  July  1, 
1874. 

6344.  Interests  in  remainder  are  not  affected. 

Sec.  1344.  The  death  of  a  devisee  or  legatee  of  a  limited  interest  before  the 
testator's  death  does  not  defeat  the  interests  of  persons  in  remainder,  who  sur- 
vive the  testator. 

6345.  Conditional  devises  and  bequests. 

Sec.  1345.  A  conditional  disj)osition  is  one  which  depends  upon  the  occur- 
rence of  some  uncertain  event,  by  which  it  is  either  to  take  effect  or  be  de- 
feated. 

6346.  Condition  precedent,  what. 

Sec  1346.  A  condition  precedent  in  a  will  is  one  which  is  required  to  be  ful- 
filled before  a  particular  disposition  takes  effect. 

6347.  Effect  of  condition  precedoit. 

Sec  1347.  Where  a  testamentary  disposition  is  made  ui)on  a  condition  pre- 
cedent, nothing  vests  until  the  condition  is  fulfilled,  except  where  such  fulfill- 
ment is  impossible,  in  which  case  the  disposition  vests,  unless  the  condition  was 
the  sole  motive  thereof,  and  the  impossibility  was  unknown  to  the  testator,  or 
arose  from  an  unavoidable  event  subsequent  to  the  execution  of  the  will. 

6348.  Conditions  precedent,  when  deemed  performed. 

Sec  1348,  A  condition  j)recedent  in  a  will  is  to  be  deemed  performed  when 

727 


6348-6359  CIVIL  CODE. 

the  testator's  intention  has  been  substantially,  though  not  literally,  complied 
with. 

6349.  Conditions  suhf^equent,  what. 

Sec.  1349.  A  couclition  subsequent  is  where  an  estate  or  interest  is  so  given 
as  to  vest  immediately,  subject  only  to  be  divested  hj  some  subsequent  act  or 
event. 

6350.  Devisees,  etc.,  fake  as  tenants  in  common. 

Sec.  1350.  A  devise  or  legacy  given  to  more  than  one  person  vests  in  them  as 
owners  in  common. 

6351.  Advancements,  when  ademptions. 

Sec  1351.  Advancements  or  gifts  are  not  to  be  taken  as  ademptions  of  gen- 
eral legacies,  unless  such  intention  is  expressed  by  the  testator  in  writing. 

CHAPTER   III. 

GENERAL     PEOVISIONS. 

6357.  Nature  and  designation  of  legacies. 

Sec.  1357.  Legacies  are  distinguished  and  designated,  according  to  their 
nature,  as  follows: 

Specific. 

1.  A  legacy  of  a  particular  thing,  specified  and  distiuguished  from  all  others 
of  the  same  kind  belonging  to  the  testator,  is  specific;  if  such  legacy  fails,  resort 
cannot  be  had  to  the  other  property  of  the  testator. 

Dejnonsfrative. 

2.  A  legacy  is  demonstrative  when  the  particular  fund  or  personal  property 
is  pointed  out  from  which  it  is  to  be  taken  or  paid;  if  such  fund  or  property 
fails,  in  whole  or  in  part,  resort  may  be  had  to  the  general  assets,  as  in  case  of 
a  general  legacy. 

Annuities. 

3.  An  annuity  is  a  bequest  of  certain  specified  sums  periodically;  if  the  fund 
or  property  out  of  which  they  are  payable  fails,  resort  may  be  had  to  the  general 
assets,  as  in  case  of  a  general  legacy. 

Besiduary. 

4.  A  residuary  legacy  embraces  only  that  which  remains  after  all  the  bequests 
of  the  will  are  discharged. 

General. 

5.  All  other  legacies  are  general  legacies. 

6358.  Propertij  of  intestate  chargeable  with  debts. 

Six'.  1358.  When  a  person  dies  intestate,  all  his  property,  real  and  personal, 
without  any  distinction  between  them,  is  chargeable  with  the  payment  of  his 
debts,  except  as  otherwise  provided  in  this  code  and  the  Code  of  Civil  Proced- 
ure. [Amendment,  approved  March  30,  1874;  Amendments  1873-4,  234;  look  efect 
July  1,  1874.^''> 

6359.  Order  of  resort  to  property  for  payment  of  debts. 

Sec.  1359.  The  i>roperty  of  a  testator,  except  as  otherwise  si:)ecially  provided 
for  in  this  code,  and  the  Code  of  Civil  Procedure,  must  be  resorted  to  .for  the 
payment  of  debts,  in  the  following  order: 

(a)  Orif^inal  Hrotlon:  of  Ci^nl  Proceflure,  anfl  fxeiiipt  from  exopution  therein, 

SKf;   i:i.'>H.  When  a  person  dicK  intestate,  his  property,  in  to  Ije  resorted  to,  iu  tlie  following  order,  in  piiyiiient 

except  Huch  iiHiH  otherwise  disposed  of  under  this  code,  of  debts:  1.  Personal  property;  2.  Keal  property]  other 

and  under  (Jbapter  V,  of  Title  XI,  of  Part  III,  of  the  Code  than  estates  of  freehold ;  3.  EstateB  of  freehold. 

728 


WILLS.  6359-6365 

1.  The  property  wliicli  is  expressly  appropriated  Ly  the  Avill  for  the  payment 
of  the  debts; 

2.  Projierty  not  disposed  of  by  the  will; 

3.  Property  which  is  devised  or  bequeathed  to  a  residuary  legatee: 

4.  Proj)erty  which  is  not  specifically  devised  or  bequeathed;  and, 

5.  All  other  property  ratably.  Before  any  debts  are  paid,  the  expenses  of 
the  administration  and  the  allowance  to  the  family  must  be  paid  or  provided 
for.  [Amendment,  approved  March  30,  1874;  Amendments  1873-4,  234;  took  effect 
July  1,  1874.^''> 

6360.  Order  of  resort  to  property  for  payment  of  legacies. 

Sec.  13G0.  The  property  of  a  testator,  except  as  otherwise  specially  provided 
in  this  code  and  the  Code  of  Civil  Procedure,  must  be  resorted  to  for  the  pay- 
ment of  legacies,  in  the  following  order: 

1.  The  property  which  is  expressly  appropriated  by  the  will  for  the  payment 
of  the  legacies; 

2.  Property  not  disposed  of  by  the  will; 

3.  Proj)erty  which  is  devised  or  bequeathed  to  a  residuary  legatee; 

4.  Property  which  is  [not]  specifically  devised  or  bequeathed.  [Amendment, 
approved  March  30,  1874;  Amendments  1873-4,  235;  took  effect  July  1,  1874.^"^ 

6361.  Same. 

Sec.  1361.  Legacies  to  husband,  widow,  or  kindred  of  any  class,  are  charge- 
able only  after  legacies  to  persons  not  related  to  the  testator. 

6362.  Abatement. 

Sec.  1362.  Abatement  takes  place  in  any  class  only  as  between  legacies  of  that 
class,  unless  a  different  intention  is  expressed  in  the  will. 

6363.  Specific  devises  and  legacies. 

Sec  1363.  In  a  specific  devise  or  legacy,  the  title  j^asses  by  the  will,  but  pos- 
session can  only  be  obtained  from  the  personal  representative;  and  he  may  be 
authorized  by  the  judge  of  the  probate  court  to  sell  the  property  devised  and 
bequeathed,  in  the  cases  herein  provided. 

6364.  Heir's  conveyance  good,  unless  ivill  is  proved  within  four  years. 

Sec  1364.  The  rights  of  a  purchaser  or  incumbrancer  of  real  property,  in 
good  faith  and  for  value,  derived  from  any  person  claiming  the  same  by  succes- 
sion, are  not  impaired  by  any  devise  made  by  the  decedent  from  whom  succes- 
sion is  claimed,  unless  the  instrument  containing  such  devise  is  duly  proved  as 
a  will,  and  recorded  in  the  office  of  the  clerk  of  the  probate  court  having  juris- 
diction thereof,  or  unless  written  notice  of  such  devise  is  filed  with  the  clerk 
of  the  county  where  the  real  property  is  situated,  within  four  years  after  the 
devisor's  death. 

6365.  Possession  of  legatees. 

Sec  1365.  AVhere  specific  legacies  are  for  life  only,  the  first  legatee  must  sign 
and  deliver  to  the  second  legatee,  or,  if  there  is  none,  to  the  personal  represent- 
ative, an  inventory  of  the  property,  expressing  that  the  same  is  in  his  custody 
for  life  only,  and  that,  on  his  decease,  it  is  to  be  delivered  and  to  remain  to  the 

(a)  Original  section:  fonowing  property,  ratably:  real  property,   devised 

Sec.  1S59.  The  property  of  a  testator,  with  the  excep-  without  being  charged  with   debts   or  legacies,  and 

tion  specified  in  the  last  section,  is  to  be  resorted  to,  in  specific  and  demonstrative  legacies ;  6.  Personal  prop- 

the  fpUowing  order,  for  the  payment  of  debts  and  lega-  erty  expressly  exempted  in  the  will, 

cies:  1.  Personal  property,exceptiug such  as  is  expressly  (6)   Original  section: 

exempted  in  the  will;  2.  Real  property  expressly  devised  Seo.  1S60.  In  the  application  of  the  personal  property 

to  pay  debts  or  legacies,  where  the  personal  property  is  of  a  decedent  to  the  payment  of  debts,  legacies  must 

exempted  in  the  will,  or  where  the  personal  property  be  charged  in  the  following  order,  unless  a  different 

•which  is  not  exempted  is  insufacient;  3.  Real  property  intention  ig  expressed  in  the  will:  1.  Residuary  lega- 

•which  is  not  effectually  devised;  4.  Property,  real  or  cies;  2.  General  legacies;  3.  Legacies  given  tor  a  valu- 

personal,  charged  with  debts  or  legacies;  but  though  able  consideration,  or  for  the  relinquishment  of  some 

real  property  is  charged  with  the  payment  of  legacies,  right  or  interest;  4.  Specific  and  demonstrative  lega- 

the  personal  property  is  not  to  be  exonerated;  5.  The  cies. 

729 


6365-6377  CFV^IL  CODE. 

use  and  for  tlie  benefit  of  tlie  second  legatee,  or  to  the  personal  reiDresentative, 
as  the  case  may  be. 

6366.  Bequest  of  interest. 

Sec.  13GG.  In  case  of  a  bequest  of  the  interest  or  income  of  a  certain  sum  or 
fund,  the  income  accmes  from  the  testator's  death. 

6367.  Sathfadion  of  legacy. 

Sec.  13G7.  A  legacy,  or  a  gift  in  contemplation,  fear  or  peril  of  death,  may 
be  satisfied  before  death.  [Amendment,  approved  March  30,  1874;  Amendments 
1873-4,  235;  took  efect  July  1,  1874.<''> 

6368.  Legacies,  xohen  due. 

Sec.  1308.  Legacies  are  due  and  deliverable  at  the  expiration  of  one  3'ear 
after  the  testator's  decease.     Annuities  commence  at  the  testator's  decease. 

6369.  Interest. 

Sec  13G9.  Legacies  bear  interest  from  the  time  when  they  are  due  and  paya- 
ble, except  that  legacies  for  maintenance,  or  to  the  testator's  widow,  bear  inter- 
est from  the  testator's  decease. 

6370.  Construction  of  these  rvles. 

Sec  1370.  The  four  preceding  sections  are  in  all  cases  to  be  controlled  by  a 
testator's  express  intention. 

6371.  Executor  according  to  the  tenor. 

Sec.  1371.  Where  it  appears,  by  the  terms  of  a  will,  that  it  was  the  intention 
of  the  testator  to  commit  the  execution  thereof  and  the  administration  of  his 
estate  to  any  person  as  executor,  such  person,  although  not  named  executor, 
is  entitled  to  letters  testamentary  in  like  manner  as  if  he  had  been  named 
executor. 

6372.  Poioer  to  ajjpoint  is  invalid. 

Sec  1372.  An  authority  to  an  executor  to  ajjpoint  an  executor  is  void. 

6373.  Executor  not  to  act  till  qualified. 

Sec.  1373.  No  person  has  any  power,  as  an  executor,  until  he  qualifies,  except 
that,  before  letters  have  been  issued,  he  may  pay  funeral  charges  and  take 
necessary  measures  for  the  preservation  of  the  estate. 

6374.  Provisions  as  to  reirjcations. 

Sec  1374.  The  provisions  of  this  title  in  relation  to  the  revocation  of  wills 
apply  to  all  wills  made  by  any  testator  living  at  the  exj^iration  of  one  year  from 
the  time  it  takes  efi'ect. 

6375.  Execution  and  constrnetion  of  prior  xvills  not  affected. 

Sec  1375.  The  provisions  of  this  title  do  not  impair  the  validity  of  the  execu- 
tion of  any  will  made  before  it  takes  effect,  or  affect  the  consti-uction  of  any 
such  will, 

6376.  Lav)  governing  validity  and  interpretation, 

Sj:c.  137G.  The  validity  and  interpretation  of  wills,  wherever  made,  are  gov- 
erned, wlion  relating  to  property  within  this  state,  by  the  laAV  of  this  state. 
{Amt'ndment,  approved  March  30,  1874;  Amendments  1873-4,  235;  took  efect  July 
1,  1874.'*" 

6377.  Lialjilily  of  beneficiaries  for  testator's  obligations. 

Sec  1377.  Those  to  whom  property  is  given  by  will  are  liable  for  the  obliga- 
tions of  the  testator  in  the  cases  and  to  the  extent  proscribed  by  the  Code  of 
Civil  Procedure. 

(a)  Thf  orl|?inal  Heetion  did  not  have  the -words  "  be-  and  intcrprctntion  of  wills  aro  governed,  when  relating 

fore  death."  to  real  property  witliiii  this  8tat^^  by  the  law  of  this 

(h)  Original  section:  state;  when  relating  to  personal  property,  by  the  law 

Sec.  137 (J.  KxceiJt  as  otherwise  provided,  the  validity  of  the  testator's  domicile. 

730 


SUCCESSION.  G383-6386 

TITLE   VII. 

6383.  Succession  defined. 

Skc.  1383.  Succession  is  the  coming-  in  of  another  to  take  the  property  of  one 
who  dies  without  disposing  of  it  by  will. 

6384.  Succession  to  estates  of  intestate. 

Sec.  1384.  The  property,  Loth  real  and  personal,  of  one  who  dies  without 
disposing  of  it  by  will,  passes  to  the  heirs  of  the  intestate,  subject  to  the  control 
of  the  probate  court,  and  to  the  possession  of  any  administrator  apjDointed  by 
that  court,  for  the  purposes  of  administration.  [Amendment,  approved  March 
30,  1874;  Amendments  1873-4,  236;  took  effect  July  1,  1874."'' 

6385.  [Sec.   1385^"'  was  repealed  by  act  approved  March  30,  1874;  Amend- 
ments 1873-4,  236;  took  effect  July  1,  1874.  J 

6386.  Succession  to  and  distHhution  of  property. 

Sec.  1386.  When  any  person  having  title  to  any  estate  not  otherwise  limited 
by  marriage  contract,  dies  without  disposing  of  the  estate  by  will,  it  is  succeeded 
to  and  must  be  distributed,  unless  otherwise  expressly  j^rovided  in  this  code 
and  the  Code  of  Civil  Procedure,  subject  to  the  payment  of  his  debts,  in  the 
following  manner : 

1.  If  the  decedent  leave  a  surviving  husband  or  wife,  and  only  one  child,  or 
the  lawful  issue  of  one  child,  in  equal  shares  to  the  surviving  husband,  or  wife 
and  child,  or  issue  of  such  child.  If  the  decedent  leave  a  surviving  husband 
or  wife,  and  more  than  one  child  living,  or  one  child  living,  and  the  lawful 
issue  of  one  or  more  deceased  children,  one  third  to  the  surviving  husband  or 
wife,  and  the  remainder  in  equal  shares  to  his  children,  and  to  the  lawful  issue 
of  any  deceased  child,  by  right  of  rejDresentation ;  but  if  there  be  no  child  of 
the  decedent  living  at  his  death,  the  remainder  goes  to  all  of  his  lineal  descend- 
ants; and  if  all  of  the  descendants  are  in  the  same  degree  of  kindred  to  the 
decedent,  they  share  equally,  otherwise  they  take  according-  to  the  right  of 
rei^'esentation.  If  the  decedent  leave  no  surviving  husband  or  wife,  but  leave 
issue,  the  whole  estate  goes  to  such  issue,  and  if  such  issue  consists  of  more 
than  one  child  living,  or  one  child  living,  and  the  law^ful  issue  of  one  or  more 
deceased  children,  then  the  estate  goes  in  equal  shares  to  the  children  living, 
or  to  the  child  living,, and  the  issue  of  the  deceased  child  or  children  by  right 
of  representation; 

2.  If  the  decedent  leave  no  issue,  [and]  the  estate  goes  in  equal  shares  to  the 
surviving  husband  or  wife,  and  to  the  decedent's  father.  If  there  be  no  father, 
then  one  half  goes  in  equal  shares  to  the  brothers  and  sisters  of  the  decedent, 
and  to  the  children  of  any  deceased  brother  or  sister,  by  right  of  representation; 
if  he  leave  a  mother  also,  she  takes  an  equal  share  w'ith  the  brothers  and  sisters. 
If  decedent  leave  no  issue,  nor  husband  nor  wife,  the  estate  must  go  to  his 
father; 

3.  If  there  be  no  issue,  nor  husband,  nor  wife,  nor  father,  then  in  equal 
shares  to  the  brothers  and  sisters  of  the  decedent,  and  to  the  children  of  any 

(a)  Original  section:  cedure;  and,  3.  To  distribute  any  remaininf;  property 

Sec.  ]3si.  The  property,  both  real  and  personal,  of  among  those  entitled  to  succeed  to  the  property  of  the 

any  one  who  dies  without  disposingof  itby  will,  passes,  decedent,  according  to  the  provisions  of  this  title, 

in  the  first  instance,  to  the  personal  representative  of  (l>)  liepealed  section: 

Buch  person  as  trustee:  1.  To  make  the  provision  for  Seo  1o85.  The  personal  rejiresentative  of  a  decedent, 

the  surviving  husband,  or  wife,  or  child,  which  is  di-  within  the  meaning  of  that  phrase  as  used  in  the  pre- 

rected  by  Title  XI,  of  Part  III,  of  the  Code  of  Civil  ceding  section,  is  the  duly  qualified  and  acting  execu- 

Procedure;  2.  To  apply  the  property  to  the  paynnent  of  tor,  administrator,  or  administrator  with  the  wiU  an- 

the  debts  of  the  decedent,  according  to  the  title  on  nexed,  of  the  estate  of  the  decedent, 
wills,  and  the  provisions  of  the  Code  of  Civil  Pro- 

731 


C386-6388  CIYIL  CODE. 

deceased  brotlier  or  sister,  by  right  of  representation;  if  a  mother  survive,  she 
takes  an  equal  share  with  the  brothers  and  sisters; 

4.  If  the  decedent  leave  no  issue,  nor  husband,  nor  wife,  nor  father,  and  no 
brother  nor  sister  is  living  at  the  time  of  his  death,  the  estate  goes  to  his 
mother,  to  the  exclusion  of  the  issue,  if  any,  of  deceased  brothers  or  sisters; 

5.  If  the  decedent  leave  a  surviving  husband  or  Mdfe,  and  no  issue,  and  no 
father,  nor  mother,  nor  brother,  nor  sister,  the  whole  estate  goes  to  the  surviv- 
ing husband  or  wife; 

6.  If  the  decedent  leave  no  issue,  nor  husband,  nor  wife,  and  no  father,  nor 
mother,  nor  brother,  nor  sister,  the  estate  must  go  to  the  next  of  kin,  in  equal 
degree,  exceiJting  that  when  there  are  two  or  more  collateral  kindred,  in  equal 
degree,  but  claiming  through  different  ancestors,  those  Avho  claimed  through 
the  nearest  ancestors  must  be  preferred  to  those  claiming  through  an  ancestor 
more  remote.     However: 

7.  If  the  decedent  leave  several  children,  or  one  child  and  the  issue  of  one  or 
more  children,  and  any  such  surviving  child  dies  under  age,  and  not  having 
been  married,  all  the  estate  that  came  to  the  deceased  child  by  inheritance  from 
such  decedent,  descends  in  equal  shares  to  the  other  children  of  the  same 
jjarent,  and  to  the  issue  of  any  such  other  children  who  are  dead,  by  right  of 
rejDresentation; 

8.  If,  at  the  death  of  such  child,  who  dies  under  age,  not  having  been  mar- 
ried, all  the  other  children  of  his  parents  are  also  dead,  and  any  of  them  have 
left  issue,  the  estate  that  came  to  such  child  by  inheritance  from  his  j^arents, 
descends  to  the  issue  of  all  other  children  of  the  same  parent;  and  if  all  the 
issue  are  in  the  same  degree  of  kindred  to  the  child,  they  share  the  estate 
equally;  otherwise,  they  take  according  to  the  right  of  rej^resentation; 

9.  If  the  decedent  leave  no  husband,  wife,  or  kindred,  the  estate  escheats  to 
the  state,  for  the  support  of  common  schools.  [Amendment,  aj^i^roved  March  30, 
1874;  Amendments  1873-4,  23G;  took  effect  Julij  1,  1874.^^' 

6387.  lllefjltimate  children  to  inherit  in  certain  events. 

Sec.  1387.  Every  illegitimate  child  is  an  heir  of  the  person  who,  in  writing, 
signed  in  the  presence  of  a  competent  witness,  acknowledges  himself  to  be  the 
father  of  such  child;  and  in  all  cases  is  an  heir  of  his  mother;  and  inherits  his 
or  her  estate,  in  whole  or  in  i:)art,  as  the  case  may  be,  in  the  same  manner  as  if 
he  had  been  born  in  lawful  wedlock;  but  he  does  not  represent  his  father  or 
mother  by  inheriting  any  part  of  the  estate  of  his  or  her  kindred,  either  lineal 
or  collateral,  unless,  before  his  death,  his  parents  shall  have  intermarried,  and 
his  father,  after  such  marriage,  acknowledges  him  as  his  child,  or  adopts  him 
into  his  family;  in  which  case  such  child  and  all  the  legitimate  children  are  con- 
sidered brothers  and  sisters,  and  on  the  death  of  either  of  them,  intestate,  and 
without  issue,  the  others  inherit  his  estate,  and  are  heirs,  as  hereinbefore  pro- 
vided, in  like  manner  as  if  all  the  children  had  been  legitimate;  saving  to  the 
father  and  mother,  respectively,  their  rights  in  the  estates  of  all  the  children  in 
like  manner  as  if  all  had  been  legitimate.  The  issue  of  all  marriages  null  in 
law,  or  dissolved  by  divorce,  are  legitimate. 

6338.   The  mother  is  successor  to  illegitimate  child. 

Six.  1388.  If  an  illegitimate  child,  who  has  not  been  acknowledged  or 
ado^jted  Ijy  his  father,  dies  intestate,  without  lawful  issue,  his  estate  goes  to 
his  mother,  or  in  case  of  her  decease  to  her  heirs  at  law. 

(a)  The  original  section  did  not  liave  in  the  first  sen-  surviving  husband  or  xnfe,  but  leave  issue."    In  the 

tcn<-e  the  wurdK  "  unlewt  otlii-rwine  expreHwly  provided  second   subdivision   it  did   not    have  the   reduudant 

in  this  cod"' and  the  Code  of  Civil  Procedure."    In  the  "and."     Iheori^tinal  section  throughout  had  tlieiudic- 

flrst  subdivision  it  did  not  have  the  last  sentence  com-  ative  "  leaves  "  instead  of  the  subjunctive  "  leave." 
zuencing  with  the  words,  "  if  the  decedent  leave  no 

732 


SUCCESSION".  C389-C398 

6389.  Degrees  of  kindred  hoiv  computed. 

Sec.  1389.  The  degree  of  kiudred  is  established  by  the  number  of  gener- 
ations, and  each  generation  is  called  a  degree. 

6390.  Direct  and  collatercd  conHancjuinity. 

Sec.  1390.  The  series  of  degrees  forms  the  line;  the  series  of  degrees  between 
l^ersons  who  descend  from  one  another  is  called  direct  or  lineal  consanguinity; 
and  the  series  of  degrees  between  jjersons  who  do  not  descend  from  one 
another,  but  spring  from  a  common  ancestor,  is  called  the  collateral  line  or 
collateral  consanguinity. 

6391.  Direct  line  descending ,  and  direct  line  ascending. 

Sec.  1391.  The  direct  line  isdiA-ided  into  a  direct  line  descending  and  a  direct 
line  ascending.  The  first  is  that  which  connects  the  ancestors  w'ith  those  who 
descend  from  him.  The  second  is  that  which  connects  a  person  Avith  those 
from  w^hom  he  descends. 

6392.  Degrees  in  direct  line. 

Sec.  1392.  In  the  direct  line  there  are  as  many  degrees  as  there  are  genera- 
tions. Thus,  the  son  is,  with  regard  to  the  father,  in  the  first  degree;  the 
grandson  in  the  second;  and  vice  versa  with  regard  to  the  father  and  grandfather 
toward  the  sons  and  grandsons. 

6393.  Degrees  in  collateral  line. 

Sec.  1393.  In  the  collateral  line  the  degi-ees  are  counted  by  generations,  from 
one  of  the  relations  up  to  the  common  ancestor,  and  from  the  common  ancestor 
to  the  other  relations.  In  such  computation  the  decedent  is  excludedj  the  rela- 
tive included,  and  the  ancestor  counted  but  once.  Thus,  brothers  are  related 
in  the  second  degree;  uncle  and  nephew  in  the  third  degree;  cousins-german  in 
the  fourth,  and  so  on. 

6394.  Relatives  of  the  half  blood. 

Sec.  1394.  Kindred  of  the  half  blood  inherit  equally  with  those  of  the  whole 
blood  in  the  same  degree,  unless  the  inheritance  come  to  the  intestate  by 
descent,  devise,  or  gift  of  some  of  his  ancestors,  in  which  case  all  those  who 
are  not  of  the  blood  of  such  ancestors  must  be  excluded  from  such  inheritance. 

6395.  Advancements  constitute  part  of  distrihidive  share. 

Sec.  1395.  Any  estate,  real  or  personal,  given  by  the  decedent  in  his  lifetime, 
as  an  advancement  to  any  child,  or  other  lineal  descendant,  is  a  part  of  the 
estate  of  the  decedent  for  the  purposes  of  division  and  distribution  thereof 
among  his  issue,  and  must  be  taken  by  such  child,  or  other  lineal  descendant, 
toward  his  share  of  the  estate  of  the  decedent. 

6396.  Advancements,  when  too  much,  or  not  enough. 

Sec.  139G.  If  the  amount  of  such  advancement  exceeds  the  share  of  the  heir 
receiving  the  same,  he  must  be  excluded  from  any  further  portion  in  the  di^dsion 
and  distribution  of  the  estate,  but  he  must  not  be  required  to  refund  any  part 
of  such  advancement;  and  if  the  amount  so  received  is  less  than  his  share,  he 
is  entitled  to  so  much  more  as  will  give  him  his  full  share  of  the  estate  of  the 
decedent. 

6397.  What  are  advancements. 

Sec.  1397.  All  gifts  and  grants  are  made  as  advancements,  if  expressed  in 
the  gift  or  grant  to  be  so  made,  or  if  charged  in  writing  by  the  decedent  as  an 
advancement,  or  acknow^ledged  in  writing  as  such,  by  the  child  or  other  suc- 
cessor or  heir. 

6398.  Valae  of  advancements,  how  determined. 

Sec.  1398.  If  the  value  of  the  estate  so  advanced  is  expressed  in  the  con- 
veyance, or  in  the  charge  thereof  made  by  the  decedent,  or  in  the  acknowledg- 

733 


6398-6405  CIVIL  CODE. 

ment  of  the  parh'  receiving-  it,  it  must  be  held  as  of  that  value  in  the  division 
and  distribution  of  the  estate;  otherwise,  it  must  be  estimated  according  to  its 
value  when  given,  as  nearly  as  the  same  can  be  ascertained. 
0399.    When  heir,  advanced  to,  dies  before  decedent. 

Sec.  1399.  If  any  child,  or  other  lineal  descendant  receiving  advancement, 
dies  before  the  decedent,  leaving  issue,  the  advancement  must  be  taken  into 
consideration  in  the  division  and  distribution  of  the  estate,  and  the  amount 
thereof  must  be  allowed  accordingly  by  the  representatives  of  the  heirs  receiv- 
ing the  advancement,  in  like  manner  as  if  the  advancement  had  been  made 
dii-ectly  to  them. 

6400.  Inheritance  of  husband  and  wife  from  each  other. 

Sec.  liUO.  The  provisions  of  the  preceding  sections  of  this  title,  as  to  the 
inheritance  of  the  husband  and  wife  from  each  other,  apply  only  to  the  separate 
proj^erty  of  the  decedents. 

6401.  CommiLnity  property,  on  death  ofxmfe. 

Sec.  1401.  Upon  the  death  of  the  wife,  the  entire  community  property,  with- 
out administration,  belongs  to  the  surviving  husband,  except  such  jDortion 
thereof  as  may  have  been  set  apart  to  her  by  judicial  decree,  for  her  support 
and  maintenance,  which  portion  is  subject  to  her  testamentary  disposition,  and 
in  the  absence  of  such  disposition,  goes  to  her  descendants,  or  heirs,  exclusive 
of  her  husband.  [Amendment,  approved  March  30,  1874;  Amendments  1873-4, 
238;  too/c  effect  July  1,  1874.^^> 

6402.  Distribution  of  common  property  on  death  of  the  husband. 

Sec.  1402.  Upon  the  death  of  the  husband,  one  half  of  the  community 
property  goes  to  the  surviving  wife,  and  the  other  half  is  subject  to  the  testa- 
mentary disposition  of  the  husband,  and  in  the  absence  of  such  disposition, 
goes  to  his  descendants,  equall}',  if  such  descendants  are  in  the  same  degree  of 
kindred  to  the  decedent;  otherwise,  according  to  the  right  of  representation; 
and  in  the  absence  of  both  such  disposition  and  such  descendants,  is  subject  to 
distribution  in  the  same  manner  as  the  separate  property  of  the  husband.  In 
case  of  the  dissolution  of  the  community  by  the  death  of  the  husband,  the 
entire  community  jDroperty  is  equally  subject  to  his  debts,  the  family  allowance, 
and  the  charges  and  expenses  of  administration. 

6403.  lidieritance  by  representation. 

Sec.  1403.  Inheritance  or  succession  "by  right  of  representation"  takes 
place  when  the  descendants  of  any  deceased  heir  take  the  same  share  or  right 
in  the  estate  of  another  person  that  their  parents  would  l)ave  taken  if  living. 
Posthumous  children  are  considered  as  living  at  the  death  of  their  parents. 

6404.  Alienn  may  inherit,  ivhen,  and  how. 

Sec.  1404.  Resident  aliens  may  take  in  all  cases  by  succession  as  citizens; 
and  no  person  capable  of  succeeding  under  the  provisions  of  this  title  is  pre- 
cluded from  such  succession  by  reason  of  the  alienage  of  any  relative;  but  no 
non-resident  foreigner  can  take  by  succession  unless  he  appears  and  claims 
^uch  succession  within  five  years  after  the  death  of  the  decedent  to  whom  he 
claims  succession. 

6405.  When  auccesaion  not  claimed  property  to  be  ^old,  and  proceeds  deposited. 
Sec.  1405,  When  succession  is  not  claimed  as  iirovidcd  in  the  joreceding  sec- 
tion, the  di.strict  court,   on  information,  must  direct  the  attorney-general  to 

(«)  Original  Bcotlon:  Beparnte  and  apart  from  her,  the  hnlf  iif  tliP  community 

Sec.  ItOi     rpon  the;   dc-ith   of  the  wife,  the   f-ntire  property,  subject  to  the  paynieut  of  the  ilebts  c  liiir^'e- 

couiiiiuiiity  prujierty,  witln'iit  ndininistration,  belontjB  aljle  to  it,  is  at  her  tcKtamentary  disposition,  and  in  the 

to  the  Biin'iviuli  liuKbaiid,  if  lie  hli;ill  not  have  aban-  absence  of  such  dispofiition  goes  to  her  descendants  or 

doned  and  lived  separate  Bn<l  apart  from  her;  but  if  tlie  heirs  at  law,  exclusive  of  her  husband, 
buiibund  shall   have  abuodoned  his  wife,  and   lived 

734 


WATEE  EIGHTS.  G405-6415 

reduce  the  property  to  Lis  or  tlie  possession  of  the  state,  or  to  cause  the  same 
to  be  sold,  and  the  same  or  the  proceeds  thereof  to  be  deposited  in  the  state 
treasury  for  the  benefit  of  such  non-resident  foreigner,  or  his  legal  represent- 
ative, to  be  paid  to  him  whenever,  within  five  years  after  such  de[)Osit,  proof 
to  tlie  satisfaction  of  the  state  controller  and  treasurer  is  produced  that  he  is 
entitled  to  succeed  thereto. 

6406.  When  the  properly  and  estate  escheat  to  the  state. 

Sec.  140G.  When  so  claimed,  the  evidence  and  the  joint  order  of  the  con- 
troller and  treasurer  must  be  filed  by  the  treasurer  as  his  voucher,  and  the 
property  delivered  or  the  proceeds  paid  to  the  claimant  on  filing  his  receipt 
therefor.  If  no  one  succeeds  to  the  estate  or  the  proceeds,  as  herein  jDrovided, 
the  property  of  the  decedent  devolves  and  escheats  to  the  people  of  the  state, 
and  is  placed  by  the  state  treasurer  to  the  credit  of  the  school  fund. 

6407.  Property  escheated  subject  to  charges  as  other  property. 

Sec.  1407.  Eeal  property  passing  to  the  state  under  the  last  section,  whether 
held  by  the  state  or  its  officers,  is  subject  to  the  same  charges  and  trusts  to 
which  it  would  have  been  subject  if  it  had  passed  by  succession,  and  is  also 
subject  to  all  the  provisions  of  Title  VIII,  Part  III,  of  the  Code  of  Civil 
Procedure.     [See  post,  11,269.] 

6408.  Successor  liable  for  decedent's  obligations . 

Sec.  1408.  Those  who  succeed  to  the  property  of  a  decedent  are  liable  for  his 
obligations  in  the  cases  and  to  the  extent  prescribed  by  the  Code  of  Civil 
Procedure. 


TITLE   YIIL 

6410.  Eights  to  xoater  may  he  acquired  by  appropriation. 

Sec.  1410.  The  right  to  the  use  of  running  water  flowing  in  a  river  or  stream 
or  down  a  canon  or  ravine  may  be  acquired  by  appropriation. 

6411.  Appropriation  must  be  for  a  useful  purpose. 

Sec.  1411.  The  appropriation  must  be  for  some  useful  or  beneficial  purpose, 
and  when  the  appropriator  or  his  successor  in  interest  ceases  to  use.it  for  such 
a  purpose,  the  right  ceases. 

6412.  Point  of  diversion  may  he  changed. 

Sec.  1412.  The  person  entitled  to  the  use  may  change  the  place  of  diversion, 
if  others  are  not  iijjured  by  such  change,  and  may  extend  the  ditch,  flume,  pipe, 
or  aqueduct  by  which  the  diversion  is  made  to  places  beyond  that  where  the 
first  use  was  made.  t 

6413.  Water  may  he  turned  into  natural  channels. 

Sec.  1413.  The  water  appropriated  may  be  turned  into  the  channel  of  another 
stream  and  mingled  with  its  water,  and  then  reclaimed;  but  in  reclaiming  it 
the  water  already  appropriated  by  another  must  not  be  diminished. 

6414.  First  in  time,  first  in  right. 

Sec  1414.  As  between  appropriators,  the  one  first  in  time  is  the  first  in 
right. 

6415.  Notice  of  appropriation. 

Sec.  1415.  A  person  desiring  to  appropriate  water  must  post  a  notice,  in 
writing,  in  a  conspicuous  place  at  the  point  of  intended  diversion,  stating 
therein ; 

735 


6415-G422  CIVIL  CODE. 

1.  That  lie  claims  tlie  water  there  flowing  to  the  extent  of  (giving  the  number) 
inches,  measured  under  a  four-inch  pressure; 

2.  The  purposes  for  which  he  claims  it,  and  the  place  of  intended  use; 

3.  The  means  by  which  he  intends  to  divert  it,  and  the  size  of  the  flume, 
ditch,  pipe,  or  aqueduct  in  which  he  intends  to  divert  it. 

A  copy  of  the  notice  must,  within  ten  days  after  it  is  jDosted,  be  recorded  in 
the  oftice  of  the  recorder  of  the  county  in  which  it  is  posted. 

6416.  Dilifjcnre  in  appropriating. 

Sec  1410.  Within  sixty  days  after  the  notice  is  posted,  the  claimant  must 
commence  the  excavation  or  construction  of  the  works  in  which  he  intends  to 
divert  the  water,  and  must  prosecute  the  work  diligentl}'  and  uninterruptedly 
to  completion,  unless  temjDorarily  interrupted  by  snow  or  rain. 

6417.  Completion  defined. 

Skc.  1417.  By  "completion"  is  meant  conducting  the  w^aters  to  the  place  of 
intended  use. 

6418.  Doctrine  of  relation  applied. 

Sec.  1418.  By  a  compliance  with  the  above  rules  the  claimant's  right  to  the 
use  of  the  water  relates  back  to  the  time  the  notice  was  posted. 

6419.  Forfeiture. 

Sec.  1419.  A  failure  to  comply  with  such  rules  deprives  the  claimants  of  the 
right  to  the  use  of  the  water  as  against  a  subsequent  claimant  who  complies 
therewith. 

6420.  Eights  of  present  claimant. 

Sec  1420.  Persons  who  have  heretofore  claimed  the  right  to  water,  and  who 
have  not  constructed  works  in  which  to  divert  it,  and  who  have  not  diverted 
nor  api^lied  it  to  some  useful  purjoose,  must,  after  this  title  takes  effect,  and 
within  twenty  days  thereafter,  proceed  as  in  this  title  provided,  or  their  right 
ceases. 

6421.  Recorder  to  keep  hook  in  ivhich  to  record  notices. 

Sec  1421.  The  recorder  of  each  county  must  keep  a  book,  in  which  he  must 
record  the  notices  provided  for  in  this  title. 

6422.  T/a's  title  not  to  affect  rights  of  riparian  proprietors. 

Sec  1422,  The  rights  of  riparian  proprietors  are  not  affected  by  the  pro- 
visions of  this  title. 

An  Act  to  promote  irrigation. 

Approved  April  1,  1872;  1871-2.  945. 

Petition  to  supervisors. 

Section  1.  Whenever  the  owners  of  any  body  of  lands  susceptible  of  one 
mode  of  in'igatiou  or  drainage  desire  to  irrigate  or  drain  the  same,  they  may 
present  to  the  board  of  supervisors  of  the  county  in  which  the  lands  or  the 
greater  portion  thereof  are  situated,  at  a  regular  meeting  of  the  board,  a  petition 
setting  forth  that  they  desire  to  adopt  measures  to  irrigate  the  same,  the  descrip- 
tion of  the  lands  by  legal  subdivisions,  the  number  of  acres  in  the  whole  district, 
and  the  number  of  acres  in  each  tract,  with  the  names  of  the  owners  thereof  and 
the  names  of  three  persons  who  may  desii-e  to  serve  as  trustees  for  the  first  three 
months. 

Puhlicatvni. 

Sec.  2.  The  petition  must  be  verified  by  the  affidavit  of  one  of  the  petition- 
ers, and  must  be  published  for  four  Aveeks  next  preceding  the  hearing  thereof, 
in  some  newspaper  published  in  the  county  in  which  the  lands  are  situated;  or, 

73G 


WATER  RIGHTS.  G422 

if  there  is  no  newspaper  piiblislied  in  the  county,  then  it  must  be  published  in 
some  newspaper  having  a  general  circulation  in  the  county,  and  an  affidavit  of 
publication  must  be  filed  with  such  petition. 

Distriv/s.  • 

Sec.  3.  When  a  district  is  situated  partly  in  different  counties,  the  trustees 
must,  after  the  petition  has  been  granted,  forward  a  copy  thereof  to  the  clerk 
of  the  board  of  supervisors  of  each  of  the  counties  in  which  any  portion  of  the 
district  may  lie,  and  the  board  to  which  the  same  is  forwarded  must  not  allow 
another  district  to  be  formed  within  such  district  unless  with  the  consent  of  the 
trustees  thereof. 

Approval  of  petition — Trustees. 

Sec.  4.  If  the  board  of  supervisors  find  upon  the  hearing  of  the  petition  that 
the  statements  are  correct,  and  that  no  land  is  improperly  included  or  excej)ted 
from  the  district,  they  must  note  their  ajiproval  on  the  jietition,  which  apjjroval 
must  be  signed  by  the  president  and  attested  by  the  clerk;  and  from  and  after 
the  approval  the  district  is  duly  formed,  and  the  persons  named  in  the  petition 
are  the  trustees  for  the  first  three  months,  and  until  their  successors  are  ap- 
pointed. 

Becord. 

Sec  5.  The  petition  must  then  be  recorded  by  the  county  recorder  in  a  book 
kept  for  the  purpose. 

By-laivs. 

Sec.  6.  After  the  approval  of  the  petition,  the  petitioners  may  make  such 
by-laws  as  they  deem  necessary  for  future  appointment  of  trustees  and  to 
effect  the  works  of  irrigation  or  drainage,  keep  the  same  in  repair  and  oj)era- 
tion,  and  for  the  control  and  management  thereof,  by  the  votes  or  consent  of  a 
majority  of  the  owners  of  the  lands  within  their  districts. 

Becord  of  by-laws. 

Sec  7.  The  by-laws  adoj^ted  must  be  signed  by  persons  owning  a  majority 
of  the  land  within  the  district,  and  must  be  recorded  by  the  county  recorder  in 
the  same  book  and  immediately  following  the  j^etition. 

Powers  of  trustees. 

Sec.  8.  The  board  thus  formed  have  power  to  elect  one  of  their  number  pres- 
ident thereof,  and  to  employ  engineers  to  survey,  plan,  locate  and  estimate  the 
cost  of  the  works  necessary  for  the  irrigation,  the  water  rights  needed,  and  the 
land  needed  for  right  of  way,  including  drains,  canals,  sluices,  water  gates,  em- 
bankments, and  material  for  construction,  and  to  construct,  maintain  and  keep 
in  repair  all  works  necessary  to  the  object  in  view. 

Beports. 

Sec  9.  The  board  of  trustees  must  rej^ort  to  the  board  of  sujoervisors  of  the 
county,  or  if  the  district  is  in  more  than  one  county  then  to  the  board  of  suijer- 
visors  of  each  county  in  which  the  district  is  situated,  the  plans  of  the  work  and 
estimates  of  the  costs,  together  with  estimates  of  the  incidental  expenses  of 
superintendence,  repairs,  etc. 

Assessments  for  benefits. 

Sec  10.  The  board  by  Avhich  the  district  was  formed  must  ajojDoint  three 
commissioners,  disinterested  persons,  resident  of  the  county  in  which  the  dis- 
trict or  some  part  thereof  is  situated,  and  must  view  and  assess  upon  the  lands 
situated  within  the  district  a  charge  proportionate  to  the  whole  expense  and  to 
the  benefits  which  will  result  from  such  works,  which  charge  must  be  collected 
and  paid  into  the  county  treasury  as  hereinafter  provided,  and  must  be  placed 
47  737 


6422  CIVIL  CODE. 

by  the  treasurer  to  the  credit  of  the  district,  and  paid  out  for  the  work  of 
irrio-atiou  or  drainage  upon  the  Avarrants  of  the  trustees,  approved  by  the  board 
of  supervisors  of  the  county. 

Warraiifs.  • 

Sec.  11.  The  warrants  drawn  by  the  tnistees  must,  after  they  are  approved 
by  the  board  of  supervisors,  be  presented  to  the  treasurer  of  the  county,  and, 
if  they  are  not  paid  on  presentation,  like  indorsement  must  be  made  thereon, 
and  they  must  be  registered  in  like  manner  as  county  warrants. 

Payments  where  district  in  two  counties. 

Sec.  12.  If  a  district  is  situated  partly  in  different  counties,  the  charge  must 
be  paid  into  the  treasury  of  the  county  in  which  the  jDarticular  tract  may  be 
situated. 

Further  assessments. 

Sec.  13.  If  the  original  assessment  is  insufficient  to  provide  for  the  complete 
irri'-'atiou  or  draiuage  of  the  lands  of  the  district,  or  if  fui'ther  assessments  are 
from  time  to  time  required  to  provide  for  the  protection,  maintenance,  and  repair 
of  the  works,  the  trustees  must  present  to  the  board  of  supervisors  by  which 
the  district  was  formed  a  statement  of  the  work  to  be  done  and  its  estimated 
cost  and  the  board  must  make  an  order  directing  the  commissioners  who  made 
the  oii'nnal  assessment,  or  other  commissioners  to  be  named  in  such  order,  to 
assess  the  amount  of  such  estimated  cost  as  a  charge  upon  the  lands  within  the 
district,  which  assessment  must  be  made  and  collected  in  the  same  manner  as 
the  original  assessment. 

List  of  charges  assessed. 

Sec  14.  The  commissioners  appointed  by  the  board  of  super-visors  must  make 
a  list  of  the  charges  assessed  against  each  tract  of  laud. 

List,  ichat  to  contain. 

Sec.  15.  The  list  must  contain: 

1.  A  description,  by  legal  subdivisions  or  natural  boundaries,  of  each  tract 
assessed; 

2.  The  number  of  acres  in  each  tract; 

3.  The  names  of  the  owners  of  each  tract,  if  known,  and  if  unknown,  tha 

fact; 

4.  The  amount  of  the  charge  assessed  against  each  tract. 

List  to  Ijefded  xoith  treasurer. 

Sec  1G.  The  list  so  made  must  be  filed  with  the  county  treasurer  of  the 
county,  or  if  the  district  is  partly  situated  in  different  counties,  then  the  original 
list  njust  be  filed  in  the  county  first  in  order  under  alphabetical  arrangement, 
and  copies  thereof,  certified  by  the  commissioner,  must  be  filed  with  the  treas- 
urer of  each  of  the  other  counties. 

Charges,  when  constitute  liens. 

Sec  17.  From  and  after  the  filing  of  the  list,  or  certified  copy  thereof,  the 
charges  assessed  u^jon  any  tract  of  land  within  the  county  constitutes  a  lien 
thereon. 

Payments. 

Sec  1H.  The  lists  thus  prepared  must  remain  in  the  office  of  the  treasurer 
for  tliirty  days,  or  longer  if  ordered  by  the  board  of  trustees,  and  during  the 
time  they  so  remain  any  jiersou  may  pay  the  amount  of  the  charge  against  any 
tract  to  tlie  treasurer,  witliout  cost. 

Action  to  collect  charges. 

Sec.  ly.  If,  at  the  end  of  thirty  days,  or  of  the  longer  time  fixed  by  the 

738 


WATER  RIGHTS.  G422 

trustees,  all  of  the  charges  have  not  been  paid,  the  troasurer  nmst  return  tho 
lists  to  the  district  attorney,  who  must  at  once  ]>rocc«'d  ],\  ,-\\\\  !i<-ti<>n  to  mlh-ct 
such  charges. 
Work. 

Sec.  20.  The  work  must  be  executed  under  the  direction  and  in  the  inaniH-r 
prescribed  b}^  the  board  of  trustees. 

Accounts. 

Sec.  21.  The  board  must  keep  accurate  accounts  of  all  ex])Oiiditurf"s,  wliidi 
accounts,  and  all  contracts  that  may  be  made  by  them,  are  open  to  the  inspec- 
tion of  the  board  of  supervisors,  and  every  person  interested. 
Property  may  be  acquired. 

Sec.  21.  The  trustees  may  acquire,   by  purchase,  all  property  necesKary  to 
caiTy  out  and  maintain  the  system  of  irrigation  or  drainage  provided  for. 
Condemnation. 

Sec.  22.  The  trustees  may  acquire  by  condemnation: 

1.  The  right  to  the  use  of  any  running  Avater  not  already  used  for  culinary 
or  domestic  purposes,  or  for  irrigating,  milling,  or  mining  puri)oses; 

2.  The  right  of  way  for  canals,  drains,  embankments,  and  other  work  neco.s- 
Bary,  and  may  take  materials  for  the  construction,  maintenance,  and  repair 
thereof,  from  lands  outside  of  as  well  as  within  the  limits  of  the  district. 

Pi^actice. 

Sec.  23.  The  provisions  of  Title  VII,  Part  III,  of  the  Code  of  Civil  Procedure 
are  applicable  to,  and  the  condemnation  herein  provided  for  must  be  made 
thereunder. 

Irrigation  or  drainage  by  individual  owners. 

Sec  24.  "Whenever  any  district  susceptible  of  one  mode  of  irrigation  or  drain- 
age is  entirely  owned  by  parties  who  desire  to  irrigate  or  drain  the  same,  and  to 
manage  the  irrigation  or  drainage  without  the  intervention  of  trustees  or  tlie 
establishment  of  by-laws,  they  may  file  the  petition  j^rovided  for  in  sections 
one  and  two,  and  must  state  therein  that  the}^  intend  to  undertake  the  irrigation 
or  drainage  on  their  own  responsibility. 

Privileges  of  owners. 

Sec.  25.  If  the  petition  is  granted,  the  owners  of  the  lands  have  all  the  rights, 
immunities,  and  privileges  granted  to  boards  of  trustees,  and  in  all  proceedings 
the  names  of  the  owners  may  be  used  instead  of  the  names  of  trustees. 

Not  applicable  to  certain  counties. 

1     Sec  26.  This  act  shall  not  be  so  construed  as  applying  to  the  counties  of 

I  Fresno,  Kern,  Tulare,  and  Yolo. 

Sec  27.  This  act,  and  the  provisions  of  the  title  of  the  Code  of  Civil  Pro- 
cedure herein  referred  to,  so  far  as  proceedings  under  this  act  are  to  be  had, 
shall  be  in  force  from  and  after  the  passage  of  this  act. 


739 


6427-6428  CIVIL  CODE. 


DIVISION    THIRD. 

Part    I.  OBLIGATIONS   IN  GENERAL 6427 

11.  CONTRACTS 6549 

III.  OBLIGATIONS  IMPOSED  BY  LAW 6708 

IV.  OBLIGATIONS  ARISING    FROM  PARTICULAR    TRANS- 

ACTIONS    6721 


I>A.IIT    I. 

OBLIGATIONS  IN  GENERAL. 

Title  I.  Definition  of  Obligations 6427 

II.  Interpretation  of  Obligations 6429 

III.  Transfer  op  Obligations 6457 

IV.  Extinction  of  Obligations 6473 


TITLE   I. 

definition  of  (Dblioation^. 

6427.  Ohligalion,  what. 

Sec.  1427.  An  obligation  is  a  legal  duty,  by  "wbicli  a  person  is  bound  to  do  or 
not  to  do  a  ceiiain  thing. 

6428.  How  created  and  enforced. 

Sec.  1428.  An  obligation  arises  either  from :  1.  The  contract  of  the  parties; 
or,  2.  The  operation  of  law. 

An  obligation  arising  from  oj^eration  of  law,  may  be  enforced  in  the  manner 
provided  by  law,  or  by  civil  action  or  proceeding.  [Amendment,  approved  3Iarch 
30,  1874;  Amendments  1873-4,  239;  took  effect  July  1,  1874.^"' 


TITLE   IL 

Intrrprctotion  of  (Oblioation^. 

Chapter  I.  General  Rules  of  Interpretation 6429 

II.  Joint  or   Several  Obligations 6430 

III.    CONLITIONAL     OBLIGATIONS 6434 

IV.  Alternative  Obligations 6448 

(a)  The  original  Bection  did  tot  have  the  laBt  eentence  commenciug, "  an  obligation  aribing  from  operation 
of  law." 

740 


OBLIGATIONS.  6429-6439 

CHAPTER  I. 

GENERAL   RULES   OF   INTERPRETATION. 

6429.  General  rules. 

Sec.  1429.  The  rules  which  govern  the  interpretation  of  contracts  are  pre- 
scribed by  Part  II  of  this  Division.  Other  obligations  are  interpreted  by  the 
same  rules  by  which  statutes  of  a  similar  nature  are  interpreted. 

CHAPTER  II. 

JOINT   OR  SEVERAL   OBLIGATIONS. 

6430.  Obligations,  joint  or  several,  etc. 

Sec.  1430.  An  obligation  imposed  upon  several  persons,  or  a  right  created 
in  favor  of  several  persons,  may  be : 

1.  Joint; 

2.  Several;  or, 

3.  Joint  and  several. 

6431.  When  joint. 

Sec.  1431.  An  obligation  imposed  upon  several  persons,  or  a  right  created  in 
favor  of  several  persons,  is  presumed  to  be  joint,  and  not  several,  except  in  the 
special  cases  mentioned  in  the  title  on  the  interpretation  of  contracts.  This 
j)resumption,  in  the  case  of  a  right,  can  be  overcome  only  by  express  words  to 
the  contrary. 

6432.  Contribution  between  joint  parties. 

Sec.  1432.  A  j)arty  to  a  joint,  or  joint  and  several  obligation,  who  satisfies 
more  than  his  share  of  the  claim  against  all,  may  require  a  proportionate 
contribution  from  all  the  parties  joined  with  him. 

CHAPTER  III. 

CONDITIONAL    OBLIGATIONS. 

6434.  Obligation,  when  conditional. 

Sec.  1434.  An  obligation  is  conditional,  when  the  rights  or  duties  of  any 
party  thereto  depend  upon  the  occurrence  of  an  uncertain  event. 

6435.  Conditions,  kinds  of. 

Sec.  1435.  Conditions  may  be  precedent,  concurrent,  or  subsequent. 

6436.  Conditions  precedent. 

Sec.  1436.  A  condition  precedent  is  one  which  is  to  be  performed  before 
some  right  dependent  thereon  accrues,  or  some  act  dependent  thereon  is  per- 
formed. 

6437.  Conditions  concurrent. 

Sec.  1437.  Conditions  concurrent  are  those  which  are  mutually  dependent, 
and  are  to  be  performed  at  the  same  time. 

6438.  Conditions  subsequent. 

Sec.  1438.  A  condition  subsequent  is  one  referring  to  a  future  event,  upon 
the  happening  of  which  the  obligation  becomes  no  longer  binding  uj^on  the 
other  party,  if  he  chooses  to  avail  himself  of  the  condition. 

6439.  Per-formance,  etc.,  of  conditions ,  when  essential. 

Sec.  1439.  Before  any  party  to  an  obligation  can  require  another  party  to 
perform  any  act  under  it,  he  must  fulfill  all  conditions  precedent  thereto  im- 
posed upon  himself;  and  must  be  able  and  offer  to  fulfill  all  conditions  con- 
current so  imposed  upon  him  on  the  like  fulfillment  by  the  other  pai'ty,  except 
as  provided  by  the  next  section. 

741 


Ci40-6459  CIVIL  CODE. 

6440.  When  performance,  etc.,  excnsed. 

Sec.  1440.  If  a  i^arty  to  an  obligation  gives  notice  to  another,  before  the 
latter  is  in  default,  that  he  will  not  perform  the  same  upon  his  part,  and  does 
not  retract  such  notice  before  the  time  at  which  performance  upon  his  part  is 
due,  such  other  party  is  entitled  to  enforce  the  obligation  without  previously 
performing  or  offering  to  perform  any  conditions  upon  his  part  in  favor  of  the 
fonner  party. 

6441.  Impossible  or  unlaicful  conditions  void. 

Sec  1441.  A  condition  is  a  contract,  the  fulfillment  of  which  is  impossible 
or  unlawful  Avithin  the  meaning  of  the  article  on  the  object  of  contracts, 
or  which  is  repugnant  to  the  nature  of  the  interest  created  by  the  contract,  is 
void. 

6442.  Conditions  involving  forfeiture,  how  construed. 

Sec.  1442.  A  condition  involving  a  forfeiture  must  be  strictly  interpreted 
against  the  party  for  whose  benefit  it  is  created. 

CHAPTER  IV. 

ALTEKNATIVE  OBLIGATIONS. 

6448.  Who  has  the  right  of  selection. 

Sec.  1448.  If  an  obligation  requires  the  performance  of  one  of  two  acts,  in 
the  alternative,  the  party  required  to  perform  has  the  right  of  selection,  unless 
it  is  otherwise  provided  by  the  terms  of  the  obligation. 

6449.  Bight  of  selection,  how  lost. 

Sec.  1449.  If  the  party  having  the  right  of  selection  between  alternative  acts 
does  not  give  notice  of  his  selection  to  the  other  party  within  the  time,  if  any, 
fixed  by  the  obligation  for  that  purpose,  or,  if  none  is  so  fixed,  before  the  time 
at  which  the  obligation  oiight  to  be  jDerformed,  the  right  of  selection  passes  to 
the  other  party. 

6450.  Alternatives  indivisible. 

Sec  1450.  The  party  having  the  right  of  selection  betAveen  alternative  acts 
must  select  one  of  them  in  its  entirety,  and  cannot  select  part  of  one  and  part 
of  another  without  the  consent  of  the  other  party. 

6451.  Nullity  of  one  of  alternative  obligalioiis. 

Sec  1451.  If  one  of  the  alternative  acts  required  by  an  obligation  is  such  as 
the  law  will  not  enforce,  or  becomes  unlawful,  or  imj^ossible  of  performance, 
the  obligation  is  to  be  interpreted  as  though  the  other  stood  alone. 


TITLE  III. 

irran$fcr  of  ©bUoation^. 

6457.  Burden  of  oIAigation  not  transferable. 

Sec  1457.  The  burden  of  an  obligation  may  be  transferred  with  the  consent 
of  the  paiiy  entitled  to  its  benefit,  but  not  otherwise,  except  as  provided  by 
Hoctiun  1400. 

6458.  Bights  arising  out  (f  obligation  transferable. 

Sec  1458.  A  right  arising  out  of  an  obligation  is  the  propei'ty  of  the  person 
to  whom  it  is  due,  and  may  be  transferred  as  such. 

6459.  Kon-negotiabh  instruments  may  be  transferred . 

Skc.  1459.  A  non-negotiable  wx'itten  contract  for  the  payment  of  money  or 

742 


OBLIGATIONS.  6459-G467 

personal  property  may  be  transferred  by  indorsement,  in  like  manner  with 
negotiable  instruments.  Such  indorsement  shall  transfer  all  the  rights  of  tl>e 
assignor  under  the  instrument  to  the  assignee,  subject  to  all  equities  and  defenses 
existing  in  favor  of  the  maker  at  the  time  of  the  indorsement. 

6460.  Covenants  running  ivith  land,  what. 

Sec.  1460.  Certain  covenants,  contained  in  grants  of  estates  in  real  property, 
are  appurtenant  to  such  estates,  and  pass  with  them,  so  as  to  bind  the  assigns 
of  thecovenantor  and  to  vest  in  the  assigns  of  the  covenantee,  in  the  same  man- 
ner as  if  they  had  personally  entered  into  them.  Such  covenants  are  said  to  run 
with  the  land. 

6461.  Wiiat  covenants  run  loith  land. 

Sec.  1461.  The  only  covenants  which  run  with  the  land  are  those  specified  in 
this  title,  and  those  which  are  incidental  thereto. 

6462.  Same. 

Sec.  1462.  Every  covenant  contained  in  a  grant  of  an  estate  in  real  property, 
which  is  made  for  the  direct  benefit  of  the  property,  or  some  part  of  it  then  in 
existence,  runs  with  the  land. 

6463.  Same. 

Sec.  1463.  The  last  section  includes  covenants  "of  warranty,"  "for  quiet  en- 
joyment," or  for  further  assurance  on  the  part  of  a  grantor,  and  covenants  for 
the  jDaymeut  of  rent,  or  of  taxes  or  assessments  upon  the  land,  on  the  part  of 
a  grantee. 

6464.  What  coveyianis  run  tvith  land  wlien  assigns  are  named. 

Sec.  1464.  A  covenant  for  the  addition  of  some  new  thing  to  real  property, 
or  for  the  direct  benefit  of  some  part  of  the  property  not  then  in  existence  or 
annexed  thereto,  when  contained  in  a  grant  of  an  estate  in  such  property,  and 
made  by  the  covenantor  expressly  for  his  assigns  or  to  the  assigns  of  the  cove- 
nantee, runs  with  land  so  far  only  as  the  assigns  thus  mentioned  are  concerned. 

6465.  Wlio  are  hound  by  covenants. 

Sec.  1465.  A  covenant  running  with  the  land  binds  those  only  who  acquire 
the  whole  estate  of  the  covenantor  in  some  part  of  the  property. 

6466.  Who  are  not. 

Sec.  1466.  No  one,  merely  by  reason  of  having  acquired  an  estate  subject  to 
a  covenant  running  with  the  land,  is  liable  for  a  breach  of  the  covenant  before 
he  acquired  the  estate,  or  after  he  has  parted  with  it  or  ceased  to  enjoy  its 
benefits. 

6467.  Apportionment  of  covenants. 

Sec.  1467.  "Where  several  persons,  holding  by  several  titles,  are  subject  to  the 
burden  or  entitled  to  the  benefit  of  a  covenant  running  with  the  land,  it  must 
be  apportioned  among  them  according  to  the  value  of  the  property  subject  to 
it  held  by  them  respectively,  if  such  value  can  be  ascertained,  and  if  not,  then 
according  to  their  respective  interests  in  point  of  quantity. 

TITLE  lY. 

Citinctiou  of  (Olilioatiou^. 

Chapter  I.  Performance , 64  ( 3 

II.  Offer  of  Performance 6485 

III.  Prevention  of  Performance  or  Offer 6511 

IV.  Accord  and  Satisfaction G521 

V.  Novation ^^"^^ 

YI.  Release 6541 

743 


6473-6479  CIVIL  CODE. 

CHAPTEK  I. 

PERFOEMANCE. 

6473.  Obligation  extinguished  by  performance. 

Sec.  1473.  Full  perfoi-mance  of  an  obligation  by  the  party  whose  duty  it  is 
to  perform  it,  or  by  any  other  person  on  his  behalf,  and  with  his  assent,  if 
accei^ted  by  the  creditor,  extinguishes  it. 

6474.  Performance  by  one  of  several  joint  debtors. 

Sec.  1474.  Performance  of  an  obligation,  by  one  of  several  persons  who  are 
jointly  liable  under  it,  extinguishes  the  liability  of  all. 

6475.  rerformance  to  one  of  joint  creditors. 

Sec.  1475.  An  obligation  in  favor  of  several  persons  is  extinguished  by  jjer- 
formance  rendered  to  any  of  them,  except  in  the  case  of  a  deposit  made  by 
owners  in  common,  or  in  joint  ownership,  which  is  regulated  by  the  title  on 
deposit. 

6476.  Effect  of  directions  by  creditors. 

Sec.  147G.  If  a  creditor,  or  any  one  of  two  or  more  joint  creditors,  at  any 
time  directs  the  debtor  to  perform  his  obligation  in  a  particular  manner,  the 
obligation  is  extinguished  by  performance  in  that  manner,  even  though  the 
creditor  does  not  receive  the  benefit  of  such  performance. 

6477.  Partial  performance. 

Sec  1477.  A  partial  performance  of  an  indivisible  obligation  extinguishes  a 
corresponding  proportion  thereof,  if  the  benefit  of  such  performance  is  volun- 
tarily retained  by  the  creditor,  but  not  otherwise.  If  such  partial  performance 
is  of  such  a  nature  that  the  creditor  cannot  avoid  retaining  it  without  injuring 
his  own  propei'ty,  his  retention  thereof  is  not  presumed  to  be  voluntary. 

6478.  Payment,  what. 

Sec  1478.  Performance  of  an  obligation  for  the  delivery  of  money  only,  is 
called  paj'ment. 

6479.  Application  of  act  by  rvay  of  performance  or  extinctions  of  obligation. 

Sec  1479.  Where  a  debtor,  under  several  obligations  to  another,  does  an  act, 
by  way  of  performance,  in  whole  or  in  part,  which  is  ecpially  a2:)plicable  to  two 
or  more  of  such  obligations,  such  j^erformance  must  be  api^lied  as  follows: 

1 .  If,  at  the  time  of  performance,  the  intention  or  desire  of  the  debtor  that 
such  performance  should  be  ai:)plied  to  the  extinction  of  any  particular  obliga- 
tion, be  manifested  to  the  creditor,  it  must  be  so  applied; 

2.  If  no  such  application  be  then  made,  the  creditor,  within  a  reasonable 
time  after  such  performance,  may  apply  it  toward  the  extinction  of  any  obliga- 
tion, performance  of  wliich  was  due  to  him  from  the  debtor  at  the  time  of  such 
perfurniance;  except  that  if  similar  obligations  were  due  to  him,  both  individu- 
ally and  as  a  trustee,  he  must,  unless  otherwise  directed  by  the  debtor,  apply 
the  performance  to  the  extinction  of  all  such  obligations  in  equal  proportion; 
and  an  ai)2)lication  once  made  by  the  creditor  cannot  be  rescinded  without  the 
consent  of  the  debtor; 

3.  If  noitlior  party  makes  sucli  ai:)plication  within  the  time  prescrilicd  herein, 
the  perforniaijce  must  be  applied  to  the  extinction  of  obligations  in  the  follow- 
ing order;  and,  if  there  be  more  than  one  obligation  of  a  particular  class,  to 
the  extinction  of  all  in  that  class  ratably: 

1.  Of  interest  due  at  the  time  of  the  performance; 

2.  Of  principal  due  at  that  time; 

3.  Of  the  obligation  earliest  in  date  of  maturity; 

744 


OBLIGATIONS.  G479-6492 

4,  Of  an  obligation  not  secured  by  a  lien  or  collateral  undertaking; 

5.  Of  an  obligation  secured  by  a  lien  or  collateral  undertaking.  [Amendment, 
approved  March  30,  1874;  Amendments  1^1^-4.,  239;  look  efectJabj  1,  1874/'' 

CHAPTER  II. 

OFFER   OF   PERFORMANCE. 

6485.  Obligation  extinguished  by  offer  of  performance. 

Sec.  1485.  An  obligation  is  extinguished  by  an  offer  of  jjerformance,  made  in 
conformity  to  the  rules  herein  j^i'escribed,  and  with  intent  to  extinguish  the 
obligation. 

6486.  Offer  of  partial  performance. 

Sec.  1486.  An  offer  of  partial  j)erformance  is  of  no  effect. 

6487.  By  tohom  to  be  made. 

Sec.  1487.  An  offer  of  performance  must  be  made  by  the  debtor,  or  by  some 
person  on  his  behalf  and  with  his  assent. 

6488.  Offer  of  performance  to  xvhom,  and  lohere  to  be  made. 

Sec.  1488.  An  offer  of  performance  must  be  made  to  the  creditor,  or  to  any 
one  of  two  or  more  joint  creditors,  or  to  a  person  authorized  by  one  or  more  of 
them  to  receive  or  collect  what  is  due  under  the  obligation,  if  such  creditor  or 
authorized  person  is  present  at  the  place  where  the  offer  may  be  made;  and,  if 
not,  wherever  the  creditor  may  be  found.  [Amendment,  approved  March  30, 
1874;  Amendments  1873-4,  240;  took  effect  July  1,  1874.^"' 

6489.  Where  offer  may  be  made. 

Sec.  1489.  In  the  absence  of  an  express  provision  to  the  contrary,  an  offer  of 
performance  may  be  made,  at  the  option  of  the  debtor: 

1.  At  any  place  appointed  by  the  creditor;  or, 

2.  "Wherever  the  person  to  whom  the  offer  ought  to  be  made  can  be  found;  or, 

3.  If  such  person  cannot,  with  reasonable  diligence,  be  found  within  this 
state,  and  within  a  reasonable  distance  from  his  residence  or  place  of  business, 
or  if  he  evades  the  debtor,  then  at  his  residence  or  place  of  business,  if  the  same 
can,  with  reasonable  diligence,  be  found  within  the  state;  or, 

4.  If  this  cannot  be  done,  then  at  any  place  within  this  state. 

6490.  When  offset  must  be  made. 

Sec.  1490.  Where  an  obligation  fixes  a  time  for  its  performance,  an  offer  of 
performance  must  be  made  at  that  time,  within  reasonable  hom-s,  and  not  before 
nor  afterwards. 

6491.  Same. 

Sec  1491.  Where  an  obligation  does  not  fix  the  time  for  its  performance,  an* 
offer  of  performance  may  be  made  at  any  time  before  the  debtor,  upon  a  reason- 
able demand,  has  refused  to  perform. 

6492.  Compensation  after  delay  in  performance. 

Sec  1492.  Where  delay  in  performance  is  capable  of  exact  and  entire  com- 
pensation, and  time  has  not  been  expressly  declared  to  be  of  the  essence  of  the 
obligation,  an  offer  of  performance,  accompanied  with  an  offer  of  such  com- 
pensation, may  be  made  at  any  time  after  it  is  due,  but  without  prejudice  to 
any  rights  acquired  by  the  creditor,  or  by  any  other  person,  in  the  meantime. 

(a)  The  original  section  did  not  have  the  words  "  in  lateral  undertaking;  i.  Of  interest;  5.  Of  the  obliga- 

■whole   or  in   part."   and   instead   of  the   subjunctive  tion  earliest  in  date  of  maturity;  6.  Of  the  obligation 

"must  be"  it  had  the  indicative  "is."    The  order  of  which  it  is  most  for  the  interest  of  the  debtor  to  ex. 

api)lieatiou,  provided  for  under  the  third  subdivision,  tinguish. 

was  as  follows:  {'')   The  original  section,  instead  of  the  concluding 

1.  Of  an  obligation  due  at  the  time  of  performance;  clause  "  wherever  the  creditor  may  be  found,"  had  the 

2.  Of  an  obligation  not  voidable  at  the  option  of  the  words  "  then  to  a  notarj-  public." 
debtor;  3.  Of  an  obligation  secui-ed  by  a  lien  or  col- 

745 


6493-6504  CIYIL  CODE. 

6493.  Ojfer  io  he  made  in  good  faith. 

Sec.  1493.  Au  oifer  of  performance  must  be  made  in  good  faith,  and  in  sucli 
manner  as  is  most  likeh',  under  the  circumstances,  to  benefit  the  creditor. 

6494.  Conditional  offer. 

Sec.  1494.  An  offer  of  pei'formance  must  be  free  from  any  conditions  which 
the  creditor  is  not  bound,  on  his  part,  to  perform. 

6495.  Ability  and  tvillingness  essential. 

Sec.  1495.  An  offer  of  i:)erformance  is  of  no  effect  if  the  person  making  it  is 
not  able  and  willing  to  perform  according  to  the  offer. 

6496.  Production  of  thing  io  he  delivered  not  necessary. 

Sec.  1496.  The  thing  to  be  delivered,  if  any,  need  not  in  any  case  be  actually 
produced,  ujDon  an  offer  of  j)erformance,  unless  the  offer  is  accepted. 

6497.  Thing  offered  to  he  kej)t  separate. 

Sec.  1497.  A  thing,  when  offered  by  way  of  performance,  must  not  be  mixed 
witli  other  things  from  which  it  cannot  be  separated  immediately  and  without 
difficulty. 

6498.  Performance  of  condition  j^recedent. 

Sec.  1498.  When  a  debtor  is  entitled  to  the  performance  of  a  condition  pre- 
cedent to,  or  concuiTent  with,  performance  on  his  part,  he  may  make  his  offer 
to  depend  upon  the  due  performance  of  such  condition. 

6499.  W7-itten  receipts. 

Sec.  1499.  A  debtor  has  a  right  to  require  from  his  creditor  a  written  receijDt 
for  any  i:)roperty  delivered  in  performance  of  his  obligation. 

6500.  Extinction  of  pecuniary  ohligaiion. 

Sec.  1500.  An  obligation  for  the  payment  of  money  is  extinguished  by  a  due 
offer  of  payment,  if  the  amount  is  immediately  deposited  in  the  name  of  the 
creditor,  in  some  bank  of  deposit  within  this  state,  of  good  rej)ute,  and  notice 
thereof  is  given  to  the  creditor. 

6501.  Objections  io  mode  of  offer. 

Sec.  1501.  All  objections  to  the  mode  of  an  offer  of  performance,  which  the 
creditor  has  an  opportunity  to  state  at  the  time  to  the  person  making  the  offer, 
and  which  could  be  then  obviated  by  him,  are  waived  by  the  creditor,  if  not 
then  stated. 

6502.  Title  to  thing  offered. 

Sec.  1502.  The  title  to  a  thing  duly  offered  in  jierformance  of  an  obligation 
passes  to  the  creditor,  if  the  debtor  at  the  time  signifies  his  intention  to  that 
effect. 

6503.  Custody  of  thing  offered. 

Sec  1503.  The  person  offering  a  thing,  other  than  money,  by  way  of  per- 
formance, must,  if  he  means  to  treat  it  as  belonging  to  the  creditor,  retain  it  as 
a  depositary  for  hire,  until  the  creditor  accepts  it,  or  until  he  has  given  reason- 
able notice  to  the  creditor  that  he  will  retain  it  no  longer,  and,  if  with  reason- 
able diligence  he  can  find  a  suitable  depositary  therefor,  until  he  has  deposited 
it  with  such  person. 

6504.  Effect  of  offer  on  accessories  of  obligation. 

Sec  1504.  An  offer  of  payment  or  other  performance,  duly  made,  though  tlie 
title  to  the  thing  offered  be  not  transferred  to  the  creditor,  stops  the  running  of 
interest  on  tlie  obligation,  and  has  the  same  effect  upon  all  its  incidents  as  a 
performance  thereof. 

746 


OBLIGATIONS.  6505-6521 

6505.   Creditor's  retention  of  thing  ichich  he  refuses  to  accept. 

Sec.  1505.  If  anything  is  given  to  a  creditor  by  way  of  perfonnance,  which 
he  refuses  to  accept  as  such,  he  is  not  bound  to  return  it  without  demand;  but 
if  he  retains  it,  he  is  a  gratuitous  depositary  thereof. 

CHAPTEK  III. 

PREVENTION   OF  PEKFORMANCE  OR  OFFER. 

6511.  What  excuses  performance,  etc. 

Sec.  1511.  The  want  of  performance  of  an  obligation,  or  of  an  offer  of  per- 
formance, in  whole  or  in  j^art,  or  any  delay  therein,  is  excused  by  the  fpllowing 
causes,  to  the  extent  to  which  they  operate : 

1.  AVhen  such  performance  or  offer  is  2:)revented  or  delayed  by  the  act  of  the 
creditor,  or  by  the  operation  of  law,  even  though  there  may  have  been  a  stipu- 
lation that  this  shall  not  be  an  excuse; 

2.  When  it  is  jDrevented  or  delayed  by  an  irresistible,  superhuman  cause,  or 
by  the  act  of  jjublic  enemies  of  this  state  or  of  the  United  States,  unless  the 
parties  have  expressly  agreed  to  the  contrary';  or, 

3.  "When  the  debtor  is  induced  not  to  make  it,  by  any  act  of  the  creditor  in- 
tended or  naturally  tending  to  have  that  effect,  done  at  or  before  the  time  at 
which  such  performance  or  offer  may  be  made,  and  not  rescinded  before  that 
time. 

6512.  Performance  xohen  prevented  by  creditor. 

Sec.  1512.  If  the  j)erformance  of  an  obligation  be  prevented  by  the  creditor, 
the  debtor  is  entitled  to  all  the  benefits  which  he  would  have  obtained  if  it  had 
been  j^erformed  by  both  parties.  [Amendment,  approved  March  30,  1874;  Amend- 
ments 1873-4,  240;  took  effect  Julxj  1,  1874.<*^ 

6513.  [Sec.  1513*'''  was  repealed  by  act  approved  March  30,  1874;    Amend- 
ments 1873-4,  240;  took  effect  July  1,  1874.] 

6514.  Same. 

Sec.  1514.  If  the  performance  of  an  obligation  is  prevented  by  any  cause 
excusing  performance,  other  than  the  act  of  the  creditor,  the  debtor  is  entitled 
to  a  ratable  proportion  of  the  consideration  to  which  he  would  have  been 
entitled  upon  full  performance,  according  to  the  benefit  which  the  creditor 
receives  from  the  actual  performance. 

6515.  Effect  of  refusal  to  accept  performance  before  offer. 

Sec.  1515.  A  refusal  by  a  creditor  to  accept  performance,  made  before  an 
offer  thereof,  is  equivalent  to  an  offer  and  refusal,  unless,  before  performance 
is  actually  due,  he  gives  notice  to  the  debtor  of  his  willingness  to  accept  it. 

CHAPTER  IV. 

ACCORD  AND   SATISFACTION. 
6521.  Accord,  what. 

Sec.  1521.  An  accord  is  an  agreement  to  accept,  in  extinction  of  an  obligation, 
something  different  from  or  less  than  that  to  which  the  person  agreeing  to 
accept  is  entitled.  [Amendment,  approved  March  30,  1874;  Amendments  1873-4, 
240;  took  effect  July  1,  1874."=^ 

(a)   Tlie  original  section,  instead  of  "  if  it  had  been  retain  whatever  he  has  received  under  the  contract, 

performed  by  both  parties,"  had  the  words  "  by  its  per-  but  he  is  entitled  to  nothing  more. 

formance  on  both  sides."  (c)   The  original  section,  instead  of  "  something  dif- 

(6)  Repealed  section:  ferent  from  or  less  than  that  to  which  the  person  agree- 

Sec.  1513.  If  a  debtor  is  dissuaded  by  his  creditor  ing  to  accept  is  entitled,"  had  the  words  "  something  to 

from  performance,  but  is  not  actually  forbidden  to  which  the  person  agreeing  to  accept  is  not  otherwlBe 

perform,  he  may,  at  his  option,  omit  to  i^erform,  and  entitled." 

747 


6522-6542  CIVIL  CODE. 

6522.  Effect  of  accord. 

Sec.  1522.  Though  the  parties  to  an  accord  are  bound  to  execute  it,  yet  it 
does  not  extinguish  the  obligation  until  it  is  fully  executed. 

6523.  Satisfaction,  xohat. 

Sec  1523.  AccejDtance,  by  the  creditor,  of  the  consideration  of  an  accord  ex- 
tinguishes the  obUgation,  and  is  called  satisfaction. 

6524.  Part  iierformance  in  satisfaction. 

Sec.  1524.  Part  performance  of  an  obligation,  either  before  or  after  a  breach 
thereof,  when  expressly  accejDted  by  the  creditor  in  writing,  in  satisfaction,  or 
rendered  in  pursuance  of  an  agreement  in  writing,  for  that  purpose,  though 
without  any  new  consideration,  extinguishes  the  obligation.  {Amendment,  ap- 
proved March  30,  1874;  Amendments  1873-4,  241;  took  effect  July  1,  1874.'''> 

GHAPTEE  V. 

NOVATION. 

6530.  Xovation,  ivhat. 

Sec.  1530.  Novation  is  the  substitution  of  a  new  obligation  for  an  existing 
one. 

6531.  Modes  of  novation. 

Sec.  1531,  Novation  is  made : 

1.  Bj'  the  substitution  of  a  new  obligation  between  the  same  parties,  with 
intent  to  extinguish  the  old  obligation; 

2.  By  the  substitution  of  a  new  debtor  in  place  of  the  old  one,  with  intent  to 
release  the  latter;  or, 

3.  By  the  substitution  of  a  new  creditor  in  place  of  the  old  one,  with  intent 
to  transfer  the  rights  of  the  latter  to  the  former. 

6532.  Novaiion  a  contract. 

Sec.  1532.  Novation  is  made  by  contract,  and  is  subject  to  all  the  rules  con- 
cerning contracts  in  general. 

6533.  Novation,  right  to  rescind  contract  of. 

Sec  1533.  When  the  obligation  of  a  third  person,  or  an  order  upon  such 
person,  is  accepted  in  satisfaction,  the  creditor  may  rescind  such  acceptance  if 
the  debtor  prevents  such  person  from  complying  wdth  the  order,  or  from  ful- 
filling the  obligation;  or  if,  at  the  time  of  the  obligation  or  order  is  received, 
such  person  is  insolvent,  and  this  fact  is  unknown  to  the  creditor,  or,  if  before 
the  creditor  can  with  reasonable  diligence  present  the  order  to  the  person  upon 
wLom  it  is  given,  he  becomes  insolvent.  [Amendinent,  api>roved  March  30, 1874; 
Amendnienl>i  1873-4,  241;  took  effect  July  1,  1874.'"^ 

CHAPTER  VI. 

RELEASE. 

6541.  Ol>ligation  e.rlingvished  by  release. 

Sec  1541.  An  obligation  is  extinguished  by  a  release  therefrom  given  to  the 
debtor  by  the  creditor,  upon  a  new  consideration,  or  in  writing,  with  or  without 
new  consideration. 

6542.  General  release,  not  to  extend  to  certain  claims. 

Sec  1542.  A  general  release  does  not  extend  to  claims  w'hich  the  creditor 

(a)  The  oiifffnal  fiection  did  not  have  the  -words  "  in  the  creditor  may  rescind  such  acceptance  if  the  debtor 

writing  "  in  cither  of  the  places  where  they  occur  iu  prevents  such  person  from  complying  with  the  order, 

the  above  amendment.  or  from  fulfilling  the  obligation;  or  if,  before  tlie  cred- 

Ih)   Original  section:  itor  can  with  reasonable  diligence  reach  such  person, 

Sec.  laaa.  When  the  obligation  of  a  third  person,  or  he  becumeu  insolvent. 
an  order  upon  such  person,  Is  accepted  iu  satisfaction, 

748 


CONTEACTS.  6542-6556 

does  not  know  or  suspect  to  exist  in  his  favor  at  the  time  of  executing  the  re- 
lease, which  if  known  by  him  must  have  materially  affected  his  settlement  with 
the  debtor.     [Amendment,  approved  March  30,  1874;  Amendments  1873-4,  241; 
took  effect  July  1,  1874/''> 
6543.  Release  of  several  joint  debtors. 

Sec.  1543.  A  release  of  one  of  two  or  more  joint  debtors  does  not  extinguish 
the  obligations  of  any  of  the  others,  unless  they  are  mere  guarantors;  nor  does 
it  affect  their  right  to  contribution  from  him. 


P^RT    II. 

CONTKACTS. 


Title    I.  Nature  of  a  Conteact 6549 

II.  Manner  of  Creating  Contracts 6619 

III.  Interpretation  of  Contracts  6635 

IV.  Unlawful  Contracts 6667 

V.  Extinction  of  Contracts  6682 


TITLE   I. 

Itatutt  of  a  (fontract. 


Chaptee    I.  Definition 6549 

II.  Parties 6556 

III.  Consent 6565 

IV.  Object  6595 

V.  Consideration 6605 

CHAPTEE  I. 

definition. 

6549.  Contract,  what. 

Sec.  1549.  A  contract  is  an  agreement  to  do  or  not  to  do  a  certain  thing. 

6550.  Essential  elements  of  contract. 

Sec.  1550.  It  is  essential  to  the  existence  of  a  contract  that  there  should  be: 

1.  Parties  capable  of  contracting; 

2.  Their  consent; 

3.  A  lawful  object;  and, 

4.  A  sufficient  cause  or  consideration. 

CHAPTER  II. 

PARTIES.     . 

6556,   Who  may  contract. 

Sec  1556.  All  persons  are  capable  of  contracting,  except  minors,  persons  of 
unsound  mind,  and  persons  deprived  of  civil  rights. 

(a)  The  original  section,  instead  of  "  does,"  had  the  word  "  did,"  acd  did  not  hare  the  laet  clause  commenc- 
Ing  with  the  words  "  which  if  known  by  him," 

749 


6557-6572  CIYIL  CODE. 

6557.  llinors,  etc. 

Sec.  1557.  Minors  and  persons  of  unsound  mind,  have  onlj^  such  capacity  as 
is  defined  by  Part  I  of  Division  I  of  this  Code. 

6558.  Identification  of  parties  necessary. 

Sec.  1558.  It  is  essential  to  the  validity  of  a  contract,  not  only  that  the  par- 
ties should  exist,  but  that  it  should  be  possible  to  identify  them. 

6559.  When  contract  for  benefit  of  third  person  may  he  enforced. 

Sec.  1559.  A  contract,  made  expressly  for  the  benefit  of  a  third  person  may 
be  enforced  by  him  at  any  time  before  the  parties  thereto  rescind  it. 

CHAPTEE  III. 

CONSENT. 

6565.  Essentials  of  consent. 

Sec.  15G5.  The  consent  of  the  parties  to  a  contract  must  be: 

1.  Free; 

2.  Mutual;  and, 

3.  Communicated  by  each  to  the  other. 

6566.  Consent,  when  voidable. 

Sec.  loGG.  A  consent  which  is  not  free  is  nevertheless  not  absolutely  void, 
but  may  be  rescinded  by  the  parties,  in  the  manner  prescribed  by  the  chapter 
on  rescission. 

6567.  Apparent  consent,  when  not  free. 

Sec.  15G7.  An  apparent  consent  is  not  real  or  free  when  obtained  through: 
1    Duress; 

2.  Menace; 

3.  Fraud; 

4.  Undue  influence;  or, 

5.  Mistake. 

6568.  Wlien  deemed  to  have  been  obtained  by  fraud,  etc. 

Sec.  15G8.  Consent  is  deemed  to  have  been  obtained  through  one   of   the 
causes  meutioned  in  the  last  section  only  when  it  would  not  have  been  given 
had  such  cause  not  existed. 
65S9.  Duress,  ichat. 

Sec.  1569.  Duress  consists  in: 

1.  Unlawful  confinement  of  the  person  of  the  party,  or  of  the  husband  or  wife 
of  such  party,  or  of  an  ancestor,  descendant,  or  adopted  child  of  such  party, 
husband,  or  wife; 

2.  Unlawful  detention  of  the  i:)roperty  of  any  such  person;  or, 

3.  Confinement  of  such  person,  lawful  in  form,  but  fraudulently  obtained,  or 
fraudulently  made  unjustly  harassing  or  oppressive. 

6570.  Mmace,  what. 

Sec.  1570.  Menace  consists  in  a  threat: 

1.  Of  such  duress  as  is  specified  in  subdivisions  1  and  3  of  the  last  section; 

2.  Of  unlawful  and  violent  injury  to  the  person  or  property  of  any  such  per- 
son as  is  specified  in  the  last  section;  or, 

3.  Of  injuiy  to  the  character  of  any  such  person. 

6571.  Fraud,  actual  or  constructive. 

Sec.  1571.  Fraud  is  either  actual  or  constructive. 

6572.  Actual  fraud,  what. 

Sec.  1572.  Actual  fraud,  within  the  meaning  of  this  chapter,  consists  in  any 
of  the  following  acts,  committed  by  a  party  to  the  contract,  or  with  his  conniv- 

750 


CONTRACTS.  G572-G580 

ance,  with  intent  to  deceive  another  party  thereto,  or  to  induce  him  to  enter 
into  the  contract: 

1.  The  suggestion,  as  a  fact,  of  that  which  is  not  true,  by  one  who  does  not 
believe  it  to  be  true; 

2.  The  positive  assertion,  in  a  manner  not  warranted  by  the  information  of 
the  person  making  it,  of  that  which  is  not  true,  though  he  believes  it  to  be 
true; 

3.  The  suppression  of  that  which  is  true,  by  one  having  knowledge  or  belief 
of  the  fact; 

4.  A  promise  made  without  any  intention  of  performing  it;  or, 

5.  Any  other  act  fitted  to  deceive. 

6573.  Constructive  fraud. 

Sec.  1573.  Constructive  fraud  consists: 

1.  In  any  breach  of  duty  which,  without  an  actually  fraudulent  intent,  gains 
an  advantage  to  the  person  in  fault,  or  any  one  claiming  under  him,  by  mis- 
leading another  to  his  j)rejudice,  or  to  the  prejudice  of  any  one  claiming  under 
him;  or, 

2.  In  any  such  act  or  omission  as  the  law  specially  declares  to  be  fraudulent, 
without  respect  to  actual  fraud. 

6574.  Actual  fraud  a  question  of  fact. 

Sec.  1574.  Actual  fraud  is  always  a  question  of  fact. 

6575.  Undue  influence,  ichat. 

Sec.  1575.  Undue  influence  consists: 

1.  In  the  use,  by  one  in  whom  a  confidence  is  reposed  by  another,  or  who 
holds  a  real  or  apparent  authority  over  him,  of  such  confidence  or  authority  for 
the  purpose  of  obtaining  an  unfair  advantage  over  him; 

2.  In  taking  an  unfair  advantage  of  another's  weakness  of  mind;  or, 

3.  In  taking  a  grossly  oppressive  and  unfair  advantage  of  another's  necessi- 
ties or  distress. 

6576.  MlMake,  what. 

Sec.  1576.  Mistake  may  be  either  of  fact  or  law. 

6577.  Mistake  of  fad. 

Sec.  1577.  Mistake  of  fact  is  a  mistake,  not  caused  by  the  neglect  of  a  legal 
duty  on  the  part  of  the  person  making  the  mistake,  and  consisting  in : 

1.  An  unconscious  ignorance  or  forgetfulness  of  a  fact  joast  or  present,  mate- 
rial to  the  contract;  or, 

2.  Belief  in  the  present  existence  of  a  thing  material  to  the  contract,  which 
does  not  exist,  or  in  the  past  existence  of  such  a  thing,  which  has  not  existed. 

6578.  Mistake  of  law. 

Sec  1578.  Mistake  of  law  constitutes  a  mistake,  within  the  meaning  of  this 
article,  only  when  it  arises  from: 

1.  A  misapprehension  of  the  law  by  all  parties,  all  supposing  that  they  knew 
and  understood  it,  and  all  making  substantially  the  same  mistake  as  to  the 
law;  or, 

2.  A  misapprehension  of  the  law  by  one  party,  of  which  the  others  are  aware 
at  the  time  of  contracting,  but  which  they  do  not  rectify. 

'  6579.  Mistake  of  foreign  laws. 

Sec  1579.  Mistake  of  foreign  laws  is  a  mistake  of  fact. 

6580.  Mutuality  of  consent. 

Sec  1580.  Consent  is  not  mutual,  unless  the  parties  all  agree  upon  the  same 
tiling  in  the  same  sense.  But  in  certain  cases  defined  by  the  chapter  on  inter- 
pretation, they  are  to  be  deemed  so  to  agree  without  regard  to  the  fact. 

751 


I 


6581-6596  CIVIL  CODE. 

6581.  Communication  of  consent. 

Sec.  1581.  Consent  can  be  communicated  witli  effect,  only  by  some  act  or 
omission  of  the  party  contracting,  by  which  he  intends  to  communicate  it,  or 
•which  necessarily  tends  to  such  communication. 

6582.  Mode  of  communicating  acceptance  of  proposal. 

Sec.  1582.  If  a  jDroposal  prescribes  any  conditions  concerning  the  communi- 
cation of  its  acceptance,  the  proposer  is  not  bound  unless  they  are  conformed 
to;  but  in  other  cases  any  reasonable  and  usual  mode  may  be  adopted. 

6583.  Mlien  communication  deemed  complete. 

Sec.  1583.  Consent  is  deemed  to  be  fully  communicated  between  the  parties 
as  soon  as  the  jDarty  accepting  a  proposal  has  put  his  accej)tance  in  the  course 
of  transmission  to  the  proposer,  in  confonnity  to  the  last  section. 

6584.  Acceptance  Jjy  performance  of  conditions. 

Sec.  1584:.  Performance  of  the  conditions  of  a  jn'oposal,  or  the  acceptance 
of  the  consideration  offered  with  a  j)roposal,  is  an  acceptance  of  the  j)roposal. 

6585.  Acceptance  must  be  absolute. 

Sec.  1585.  An  acceptance  must  be  absolute  and  unqualified,  or  must  include 
in  itself  an  acceptance  of  that  character  which  the  proposer  can  separate  from 
the  rest,  and  which  will  conclude  the  jDcrson  accepting.  A  qualified  accept- 
ance is  a  new  proposal. 

6586.  Revocation  of  proposal. 

Sec.  1586.  A  proposal  may  be  revoked  at  any  time  before  its  acceptance  is 
communicated  to  the  proj^oser,  but  not  afterw^ards. 

6587.  Bevocation,  how  made. 

Sec.  1587.  A  proposal  is  revoked: 

1.  By  the  communication  of  notice  of  revocation  by  the  proposer  to  the  other 
part}',  in  the  manner  prescribed  by  sections  1581  and  1583,  before  his  accept- 
ance has  been  communicated  to  the  former; 

2.  By  the  lapse  of  the  time  jirescribed  in  such  proposal  for  its  accejitance,  or 
if  no  time  is  so  prescribed,  the  lapse  of  a  reasonable  time  without  communica- 
tion of  the  acceptance; 

8.  By  the  failure  of  the  accej)tor  to  fulfill  a  condition  precedent  to  accept- 
ance; or, 

4.  By  the  death  or  insanity  of  the  proposer. 

6588.  Itatification  of  contract  void  for  want  of  consent. 

Sec  1588.  A  contract  which  is  voidable  solely  for  want  of  due  consent,  may 
be  ratified  by  a  subsequent  consent. 

6589.  Assumption  of  oUlrjation  by  acceptance  of  benefds. 

Sec  1 589.  A  voluntary  acceptance  of  the  benefit  of  a  transaction  is  equivalent 
to  a  consent  to  all  the  obligations  arising  from  it,  so  far  as  the  facts  are  known, 
or  ought  to  be  known,  to  the  jierson  accepting. 

CHAPTER  IV. 

OBJECT   OF   A   CONTRACT. 

6595.  Object,  ivhal. 

Sec.  1595.  Tlie  object  of  a  contract  is  the  thing  which  it  is  agreed,  On  the 
part  of  the  jmrty  receiving  the  consideration,  to  do  or  not  to  do. 

6596.  Requisites  of  object. 

Sec  1590.  The  object  of  a  contract  must  be  lawful  when  the  contract  is  made, 
and  possible  and  ascertainable  by  the  time  the  contract  is  to  be  performed. 

752 


CONTEACTS.  6597-GG13 

6597.  Impossibility,  what. 

Sec.  1597.  Everything  is  deemed  possible  except  that  wliich  is  impossible  in 
the  nature  of  things. 

6598.  Wien  contract  ivholly  void. 

Sec.  1598.  AVhere  a  contract  has  but  a  single  object,  and  such  object  is  un- 
lawful, whether  in  Avhole  or  in  part,  or  wholly  impossible  of  i:)erformunce,  or  so 
vaguely  expressed  as  to  be  wholly  unaseertainable,  the  entire  contract  is  void. 

CHAPTEE  V. 

CONSIDEIIATION. 

6605.  Good  consideration,  what. 

Sec.  1C05.  Any  benefit  conferred,  or  agreed  to  be  conferred,  upon  the  jirom- 
isor,  by  any  other  person,  to  which  the  promisor  is  not  lawfully  entitled,  or  any 
prejudice  suffered,  or  agreed  to  be  suffered,  by  such  person,  other  than  such  as 
he  is  at  the  time  of  consent  lawfully  bound  to  suffer,  as  an  inducement  to  the 
promisor,  is  a  good  consideration  for  a  j^romise. 

6606.  How  far  legal  or  moral  obligation  is  a  good  consideration. 

Sec.  1606.  An  existing  legal  obligation  resting  uj)on  the  promisor,  or  a  moral 
obligation  originating  in  some  benefit  conferred  upon  the  promisor,  or  preju- 
dice suffered  by  the  j)romisee,  is  also  a  good  consideration  for  a  promise,  to  an 
extent  corresponding  with  the  extent  of  the  obligation,  but  no  further,  or 
otherwise. 

6607.  Gonsideratjon  lawful. 

Sec.  1607.  The  consideration  of  a  contract  must  be  lawful  within  the  meaning 
of  section  1667. 

6608.  Effect  of  its  illegality. 

Sec.  1608.  If  any  part  of  a  single  consideration  for  one  or  more  objects,  or  of 
several  considerations  for  a  single  object,  is  unlawful,  the  entire  contract  is  void. 

6609.  G onsideration  executed  or  executory. 

Sec.  1609.  A  consideration  may  be  executed  or  executory,  in  whole  or  in  part. 
In  so  far  as  it  is  executory  it  is  subject  to  the  provisions  of  Chapter  IV  of  this 
title. 

6610.  Executory  consideration. 

Sec.  1610.  "When  a  consideration  is  executory,  it  is  not  indispensable  that 
the  contract  should  specify  its  amount  or  the  means  of  ascertaining  it.  It  may 
be  left  to  the  decision  of  a  third  person,  or  regulated  by  any  specified  standard. 

6611.  How  ascertained. 

Sec.  1611.  When  a  contract  does  not  determine  the  amount  of  the  considera- 
tion, nor  the  method  by  which  it  is  to  be  ascertained,  or  when  it  leaves  the 
amount  thereof  to  the  discretion  of  an  interested  party,  the  consideration  must 
be  so  much  money  as  the  object  of  the  contract  is  reasonably  worth. 

6612.  Effect  of  impossihility  of  ascertaining  consideration. 

Sec.  1612.  Where  a  contract  provides  an  exclusive  method  by  which  its  con- 
sideration is  to  be  ascertained,  which  method  is  on  its  face  impossible  of  exe- 
cution, the  entire  contract  is  void. 

6613.  Same. 

Sec.  1613.  Where  a  contract  provides  an  exclusive  method  by  which  its  con- 
sideration is  to  be  ascertained,  which  method  appears  possible  on  its  face,  but 
in  fact  is,  or  becomes,  impossible  of  execution,  such  provision  only  is  void. 
48  753 


6614-6G24  CFV'IL  CODE. 

6614.  Writfen  insfi'iiment  prcmmptive  evidence  of  consideration. 

Sec.  IGl-l.  A  written  instrument  is  presumptive  evidence  of  a  consideration. 

6615.  Burden  of  proof  to  invalidate  sufficient  consideration. 

Sec.  IGlo.  The  burden  of  showing  a  want  of  consideration  sufficient  to  sup- 
port an  instrument  lies  with  the  party  seeking  to  invalidate  or  avoid  it. 


TITLE   II. 

Blauucr  of  (rrcatin0  (fontracto. 

6619.  Contracts,  express  or  implied. 

Sec.  1619.  A  contract  is  either  express  or  implied. 

6620.  Express  contract,  xohat. 

Sec.  1G20.  An  express  contract  is  one,  the  terms  of  which  are  stated  in  wordg. 

6621.  Implied  contract,  xoliat. 

Sec.  1G21.  An  implied  contract  is  one,  the  existence  and  terms  of  which  are 
manifested  by  conduct. 

6622.  What  contracts  may  he  oral. 

Sec.  1G22.  All  contracts  may  be  oral,  except  such  as  are  specially  required  by 
statute  to  be  in  writing. 

6623.  Contract  not  in  writing  through  fraud,  may  he  enforced  against  fraudulent 

party. 
Sec.  1G23.  "Where  a  contract,  which  is  required  by  law  to  be  in  writing,  is 
prevented  from  being  \}\xi  into  writing  by  the  fraud  of  a  party  thereto,  any  other 
party  who  is  by  such  fraud  led  to  believe  that  it  is  in  writing,  and  acts  upon 
such  belief  to  his  prejudice,  may  enforce  it  against  the  fraudulent  party. 

6624.  What  contracts  must  he  in  writing. 

f.  I'jpc.  1G24.     The  following  contracts  are  invalid,  unless  the  same,  or  some 

an  agent  or  iji-    aoraudum  thereof,  be  in  writing  and  subscribed  by  the  party  to  be 
tion  or  a  «r..,.        ,      ,  .  ,  °  J  i        J 

^ea,  or  by  his  agent: 

1.  All  agreement  that  by  its  terms  is  not  to  be  performed  within  a  year  from 
the  making  thereof; 

2.  A  si^ecial  promise  to  answer  for  the  debt,  default  or  miscarriage  of  another, 
except  in  the  cases  pro%'ided  for  in  section  twenty-seven  hundred  and  ninety- 
four  of  this  code; 

3.  An  agreement  made  upon  consideration  of  marriage,  other  than  a  mutual 
promise  to  marry; 

4.  An  agreement  for  the  sale  of  goods,  chattels,  or  things  in  action,  at  a 
price  not  less  than  two  hundred  dollars,  unless  the  buyer  accept  or  receive  part 
of  such  goods  and  cliattels,  or  the  evidences,  or  some  of  them,  of  such  things 
in  action,  or  pay  at  the  time  some  part  of  the  purchase-money;  but  when  a  sale 
is  made  by  auction,  an  entry  by  the  auctioneer  in  his  sale  book,  at  the  time  of 
the  sale,  of  the  kind  of  property  sold,  the  terms  of  sale,  the  price,  and  the 
names  of  the  purc-luxser  and  j^erson  on  whose  account  the  sale  is  made,  is  a 
sufficient  memorandum; 

5.  An  agreement  for  the  leasing  for  a  longer  period  than  one  year,  or  for  the 
sale  of  real  property,  or  of  an  interest  therein;  and  such  agreement,  if  made  by 
an  agent  of  the  party  sought  to  be  charged,  is  invalid,  unless  the  authority  of  the 

7o4 


CONTRACTS.  6G24-6640 

agent  be  in  writing',  subscribed  by  the  party  sought  to  be  charged.  [A7nend- 
ment,  approved  March  30,  1874;  AviendmoUs  1873-4,  ^41;  took  effect  July  1, 
1874.<^' 

6625.  Effect  of  writing. 

Sec.  1625,  The  execution  of  a  contract  in  writing,  whether  the  law  requires 
it  to  be  written  or  not,  supersedes  all  the  oral  negotiations  or  stipulations  con- 
cerning its  matter  which  preceded  or  accomj^anied  the  execution  of  the  instni- 
ment. 

6626.  Contract  in  xoriting  takes  effect,  when. 

Sec  1626.  A  contract  in  writing  takes  effect  upon  its  delivery  to  the  party  in 
whose  favor  it  is  made,  or  to  his  agent. 

6627.  Provisions  of  chapter  on  transfers  of  real  property. 

Sec.  1627.  The  provisions  of  the  chai:)ter  on  transfers  in  general,  concerning 
the  delivery  of  grants,  absolute  and  conditional,  apply  to  all  written  contracts. 

6628.  Corporate  seal,  how  affixed. 

Sec.  1628.  A  corporate  or  official  seal  may  be  affixed  to  an  instrument  by  a 
mere  impression  upon  the  paper  or  other  material  on  which  such  instrument  is 
written. 

6629.  Provisions  abolishing  seals  made  applicable. 

Sec  1629.  All  distinctions  between  sealed  and  unsealed  instruments  are 
abolished. 


TITLE  III. 

luterpittation  of  (!loutract0. 

6635.  Uniformity  of  interpretation. 

Sec.  1635.  All  contracts,  whether  public  or  private,  are  to  be  interiDreted  by 
the  same  rules,  except  as  otherwise  provided  by  this  code. 

6636.  Contracts,  how  to  he  interpreted. 

Sec  1636.  A  contract  must  be  so  interpreted  as  to  give  effect  to  the  mutual 
intention  of  the  parties  as  it  existed  at  the  time  of  contracting,  so  far  as  the 
same  is  ascertainable  and  lawful. 

6637.  Intention  of  parties,  how  ascertained. 

Sec  1637.  For  the  purpose  of  ascertaining  the  intention  of  the  parties  to  a 
contract,  if  otherwise  doubtful,  the  rules  given  in  this  chaj^ter  are  to  be  applied. 

6638.  Intention  to  be  ascertained  from  language. 

Sec  1638.  The  language  of  a  contract  is  to  govern  its  interpretation,  if  the 
language  is  clear  and  explicit,  and  does  not  involve  an  absurdity. 

6639.  Interpretation  ofioritten  contracts. 

Sec  1639.  "When  a  contract  is  reduced  to  writing,  the  intention  of  the  parties 
is  to  be  ascertained  from  the  writing  alone,  if  possible;  subject,  however,  to  the 
other  provisions  of  this  title. 

6640.  Writing,  when  disregarded. 

Sec  1640.  When,  through  fraud,  mistake,  or  accident,  a  written  contract 
fails  to  express  the  real  intention  of  the  parties,  such  intention  is  to  be  regarded, 
and  the  erroneous  parts  of  the  writing  disregarded. 

(o)  Original  Bection:  agent  for  the  purpose:  1.  An   agreement   that  by  its 

Sec.  1624.  The  fuUowing  contracts,  or  some  memo-  terms  cannot  be  fully  performed  within  one  year;  2. 

randum  thereof,  expreBsiug  the  parties,  their  consent.  An  agreement  made  upon  consideriition  of  man-iage, 

and  the  object  of  the  contract,  must  be  in  writing,  sub-  other  than  unitual  promises  to  marry, 
scribed  by  the  party  to  be  charged  thereby,  or  by  his 

755 


6G41-6652  CH^L  CODE. 

6641.  Effect  to  he  given  to  every  paii  of  contract. 

Sec.  1G41.  Tbe  whole  of  a  contract  is  to  be  taken  together,  so  as  to  give  effect 
to  every  part,  if  reasonably  jDracticable,  each  clause  hel^nng  to  interpret  the 
other. 

6642.  Several  contracts  when  taken  together. 

Sec.  IG'42.  Several  contracts  relating  to  the  same  matters,  between  the  same 
parties,  and  made  as  parts  of  substantially  one  transaction,  are  to  be  taken 
together. 

6643.  Interpretation  in  favor  of  contract. 

Sec.  1043.  A  contract  must  receive  such  an  interpretation  as  will  make  it 
lawful,  operative,  definite,  reasonable,  and  capable  of  being  carried  into  effect, 
if  it  can  be  done  without  violating  the  intention  of  the  parties. 

6644.  Words  to  be  understood  in  usual  sense. 

Sec  1G44.  The  words  of  a  contract  are  to  be  understood  in  their  ordinary 
and  popular  sense,  rather  than  according  to  their  strict  legal  meaning;  unless 
used  by  the  parties  in  a  technical  sense,  or  unless  a  special  meaning  is  given  to 
them  by  usage,  in  which  case  the  latter  must  be  followed. 

6645.  Technical  icords. 

Sec  1G45.  Technical  words  are  to  be  iiiterj)reted  as  usually  understood  by 
persons  in  the  profession  or  business  to  which  they  relate,  unless  clearly  used 
in  a  different  sense. 

6646.  Law  of  place. 

Sec  1G4G.  A  contract  is  to  be  interpreted  according  to  the  law  and  usage  of 
the  place  where  it  is  to  be  performed;  or,  if  it  does  not  indicate  a  place  of  per- 
formance, according  to  the  law  and  usage  of  the  place  where  it  is  made. 

6647.  Contracts  eocplained  by  circumstances. 

Sec  1C47.  A  contract  may  be  explained  by  reference  to  the  circumstances 
under  which  it  was  made,  and  the  matter  to  which  it  relates. 

6648.  Contract  restricted  to  Us  evident  object. 

Sec  1G48.  However  broad  may  be  the  terms  of  a  contract,  it  extends  only  to 
those  things  concerning  which  it  appears  that  the  parties  intended  to  contract. 

6649.   Inierpretalion  in  sense  in  which  promisor  believed  j^romisee  to  i-ely. 

Sec  1G49.  If  the  terms  of  a  promise  are  in  any  respect  ambiguous  or  uncer- 
tain, it  must  be  interj)reted  in  the  sense  in  which  the  promisor  believed,  at  the 
time  of  making  it,  that  the  promisee  understood  it. 

66£0.  Farticvlar  clause  subordinate  to  general  intent. 

Sec  1C50.  Particular  clauses  of  a  contract  are  subordinate  to  its  general 
intent. 

6651.  Contract,  partly  written  and  partly pyrinted. 

Sec  1G51.  Where  a  contract  is  jmrtly  written  and  partly  printed,  or  where 
part  of  it  is  written  or  printed  under  the  special  directions  of  the  parties,  and 
with  a  special  view  to  their  intention,  and  the  remainder  is  copied  from  a  form 
originally  prepared  without  special  reference  to  the  particular  parties  and  the 
particular  (contract  in  question,  the  written  parts  control  the  printed  parts,  and 
the  parts  which  are  jjurely  original  control  those  which  are  coi)ied  from  a  form. 
And  if  the  two  are  absolutely  repugnant,  the  latter  must  be  so  far  disregarded, 

66.'' 2.  I/tjnignanciis,  how  reconciled. 

Sec  1G52.  Repugnancy  in  a  contract  must  be  reconciled,  if  possible,  by  such 
an  interpretation  as  will  give  some  effect  to  the  repugnant  clauses,  subordinate 
to  the  general  intent  and  purpose  of  the  whole  contract. 

756 


CONTRACTS.  GG53-GGG8 

6653.  Inconsistent  words  rejected. 

Sec.  1653.  Words  in  a  contract  whicli  are  wholly  inconsistent  with  its  nature, 
or  with  the  main  intention  of  the  parties,  are  to  be  rejected. 

6654.  Words  to  be  taken  most  strongly  against  icliom. 

Sec.  1654.  In  cases  of  uncertainty  not  removed  by  the  preceding  rule,  the 
language  of  a  contract  should  be  interpreted  most  strongly  against  the  party 
who  caused  the  uncertainty'  to  exist.  The  promisor  is  presumed  to  be  such 
party;  excej)t  in  a  contract  between  a  public  officer  or  body,  as  such,  and  a 
private  party,  in  which  it  is  presumed  that  all  uncertainty  was  caused  by  the 
private  jDarty. 

6655.  Reasonable  stipulations,  lohen  implied. 

Sec.  1G55.  Stipulations  which  are  necessary  to  make  a  contract  reasonable,  or 
conformable  to  usage,  are  implied,  in  respect  to  matters  concerning  which  the 
contract  manifests  no  contrary  intention. 

6656.  Necessary  incidents  implied. 

Sec  1656.  All  things  that  in  law  or  usage  are  considered  as  incidental  to  a 
contract,  or  as  necessary  to  carry  it  into  effect,  are  implied  therefrom,  unless 
some  of  them  are  expressly  mentioned  therein,  when  all  other  things  of  the 
same  class  are  deemed  to  be  excluded. 

6657.  Time  of  performance  of  contract. 

Sec.  1657.  If  no  time  is  specified  for  the  performance  of  an  act  required  to 
be  performed,  a  reasonable  time  is  allowed.  If  the  act  is  in  its  nature  capable 
of  being  done  instantly— as,  for  example,  if  it  consists  in  the  payment  of  money 
only — it  must  be  j^erf  ormed  immediately  upon  the  thing  to  be  done  being  exactly 
ascertained. 

6658.  [Sec  1658^^^  was  repealed  by  act  approved  March  30, 1874;  Amendments 
1873-4,  242;  took  effect  Jidy  1,  1874.] 

6659.  When  joint  and  several. 

Sec  1659.  Where  all  the  parties  who  unite  in  a  promise  receive  some  benefit 
from  the  consideration,  whether  past  or  present,  their  promise  is  presumed  to 
be  joint  and  several. 

6660.  Same. 

Sec  1660.  A  promise,  made  in  the  singular  number,  but  executed  by  several 
persons,  is  presumed  to  be  joint  and  several. 

6661.  Executed  and  executory  contracts,  what. 

Sec  1661.  An  executed  contract  is  one,  the  object  of  which  is  fully  performed. 
All  others  are  executoiy. 

TITLE  lY. 


6667.  What  is  nnlaiiful. 

Sec  1667.  That  is  not  lawful  which  is: 

1.  Contrary  to  an  express  provision  of  law; 

2.  Contrary  to  the  policy  of  express  law,  though  not  expressly  prohibited;  or, 

3.  Otherwise  contrary  to  good  morals. 

6668.  Certain  contracts  unlawful. 

Sec  1668.  All  contracts  which  have  for  their  object,  directly  or  indirectly,  to 

(a)  Repealed  section:  sence  of  a  contract,  unless  by  its  terms  expressly  so 

Sec.  1658.  Time  is  never  considered  as  of  the  es-     ijrovided. 

757 


6G68-6682  CIVIL  CODE. 

exemjit  anj'  one  from  responsibility  for  bis  own  fraud,  or  -u-illful  injiuy  to  the 
person  or  proj^erty  of  another,  or  violation  of  law,  whether  willful  or  negligent, 
are  against  the  policy  of  the  law. 

6669.  [Sec.  IGGD*"'  was  repealed  by  act  approved  March  30,  1874;  Amendments 
1873-4,  242;  took  eflect  July  1,  1874.] 

6670.  Contract  fixing  damages,  void. 

Sec.  1670.  Every  contract  by  which  the  amount  of  damage  to  be  paid,  or 
other  compensation  to  be  made,  for  a  breach  of  an  obligation,  is  determined  in 
anticipation  thereof,  is  to  that  extent  void,  except  as  expressly  provided  in  the 
next  section. 

6671.  Exception. 

Sec.  1071.  The  parties  to  a  contract  may  agree  therein  upon  an  amount  which 
shall  be  presumed  to  be  the  amount  of  damage  sustained  by  a  breach  thereof, 
when,  from  the  nature  of  the  case,  it  would  be  impracticable  or  extremely  diffi- 
cult to  fix  the  actual  damage. 
6672. 

[Sec.  1072^'"'  was  repealed  by  act  approved  March  30,  1874;  Amendments 
1873-4,  242;  took  effect  July  1,  1874.] 

6673.  Contract  in  restraint  of  trade,  void. 

Sec.  1G73.  Every  contract  by  which  any  one  is  restrained  from  exercising  a 
lawful  profession,  trade,  or  business  of  any  kind,  otherwise  than  is  provided  by 
the  next  two  sections,  is  to  that  extent  void. 

6674.  Exception  in  favor  of  sale  of  good  loiil. 

Sec.  1674.  One  who  sells  the  good  will  of  a  business  may  agree  with  the 
buyer  to  refrain  from  can'ying  on  a  similar  business  within  a  specified  county, 
city,  or  a  part  thereof,  so  long  as  the  buyer  or  any  person  deriving  title  to  the 
good  will  from  him,  carries  on  a  like  business  therein. 

6675.  Exception  in  favor  of  partneraldp  arrangements. 

Sec.  1675.  Partners  may,  upon  or  in  anticipation  of  a  dissolution  of  the  part- 
nership, agree  that  none  of  them  will  carry  on  a  similar  business  within  the 
same  city  or  town  where  the  partnership  business  has  been  transacted,  or 
within  a  specified  part  thereof. 

6676.  Contract  in  restraint  of  marriage,  void. 

Sec.  1676.  Every  contract  in  restraint  of  the  marriage  of  any  j^erson,  other 
than  a  minor,  is  void. 

TITLE  Y. 

(f  Alinction  of  (Tonlracb. 

Chapter      I.  Contracts,  how  Extinguished GG82 

II.  Kescission 6688 

III.  Alteration  and  Cancellation GG97 

CHAPTEE  I. 

CONTRACTS,    HOW   EXTINGUISHED. 
6682.    Contrart,  hovj  extinguished. 

Si:c.  1G82.  A  contract  may  be  extinguished  in  like  manner  with  any  other 
obligation,  and  also  in  the  manner  prescribed  by  this  title. 

(a)  Repealed  neotlon :  (h)  Repealed  section: 

Sec.  IfiCa.  PenalticH  iiupdHfidby  conlraot  foranynon-  Sec.  J  072.  Every  Rtipiilntion  or  condition  in  a  con- 

perfornianf-e  thereof,  an;  void,   lint  this  Kection  doeRuot  tract,  by  which  any  party  thereto  is  restricted  from 

render  void  puch  Ix.udH  or '.bligatioiiB,  penal  in  form,  UH  enforcing  his  rights  under  the  contract  by  the  usual 

have  heretofore  been  commonly  used;  it  merely  re-  legal  proceedings  in  the  ordinary  tribunals,  or  which 

jecte  and  avoids  the  penal  clauecB.  limits  the  time  within  which  he  may  thus  enforce  his 

rights,  is  void. 

758 


CONTRACTS.  6C88-G698 

CHAPTEE  II. 

RESCISSION. 

6688.  Eescission  eximguishes  contract. 

Sec.  1G88.  A  contract  is  extinguished  by  its  rescission. 

6689.  WJien  party  may  rescind. 

Sec.  1689.  A  party  to  a  contract  may  rescind  the  same  in  the  following  cases 
only: 

1.  If  the  consent  of  the  party  rescinding,  or  of  any  ]oarty  jointly  contracting 
with  him,  was  given  by  mistake,  or  obtained  through  duress,  menace,  fraud,  or 
undue  influence,  exercised  by  or  with  the  connivance  of  the  party  as  to  whom 
he  rescinds,  or  of  any  other  party  to  the  contract  jointly  interested  Avith  such 
party; 

2.  If,  through  the  fault  of  the  party  as  to  whom  he  rescinds,  the  considera- 
tion for  his  obligation  fails,  in  whole  or  in  part; 

3.  If  such  consideration  becomes  entirely  void  from  any  cause; 

4.  If  such  consideration,  before  it  is  rendered  to  him,  fails  in  a  material  re- 
spect, from  any  cause;  or, 

5.  By  consent  of  all  the  other  parties. 

6690.  When  stipulations  against  right  to  rescind  do  not  defeat  it. 

Sec  1690.  A  stipulation  that  errors  of  description  shall  not  avoid  a  contract, 
or  shall  be  the  subject  of  compensation,  or  both,  does  not  take  away  the  right 
of  rescission  for  fraud,  nor  for  mistake,  where  such  mistake  is  in  a  matter  essen- 
tial to  the  inducement  of  the  contract,  and  is  not  capable  of  exact  and  entire 
compensation. 

6691.  Rescission,  how  effected. 

Sec  1691.  Eescission,  when  not  effected  by  consent,  can  be  accomplished  only 
by  the  use,  on  the  part  of  the  party  rescinding,  of  reasonable  diligence  to  comply 
with  the  following  rules: 

1.  He  must  rescind  promptly  upon  discovering  the  facts  which  entitle  him  to 
rescind,  if  he  is  free  from  duress,  menace,  undue  influence,  or  disability,  and  is 
aware  of  his  right  to  rescind;  and, 

2,  He  must  restore  to  the  other  party  everj'thing  of  value  which  he  has 
received  from  him  under  the  contract;  or  must  offer  to  restore  the  same,  upon 
condition  that  such  party  shall  do  likewise,  unless  the  latter  is  unable  or  j)Osi- 
tively  refuses  to  do  so. 

CHAPTEE   III. 

ALTERATION  AND  CANCELLATION. 

6697.  Alteration  of  verbal  contract. 

Sec  1697.  A  contract  not  in  writing  may  be  altered  in  any  respect  by  con- 
sent of  the  parties,  in  writing,  without  a  new  consideration,  and  is  extinguished 
thereby  to  the  extent  of  the  new  alteration.  [Amendment,  approved  March  30, 
1874;  Amendmerds  1873-4,  242;  took  effect  July  1,  1874.^"' 

6698.  Alteration  of  written  contract. 

Sec.  1698.  A  contract  in  writing  may  be  altered  by  a  contract  in  writing,  or 
by  an  executed  oral  agreement,  and  not  otherwise.  [Amendment,  approved 
March  30,  1874;  Amendmeids  1873-4,  242;  took  effect  July  1,  1874."" 

(a)   Original  section:  (6)   Original  section: 

Sec.  1697.  A  contract  may  be  altered  in  any  respect  Sec.  1698.  A  contract  in  -writing  may  be  altered  by  a 
by  consent  of  the  parties,  without  a  new  consideration,  contract  in  writing,  or  by  an  executed  oral  agreement ; 
and  is  extinguished  thereby  to  the  extent  of  the  alter-  and  not  otherwise,  except  aa  to  the  time  of  perlorin- 
ation.    ■  ance,  which  may  be  extended  by  any  form  of  agree- 

ment. 

759 


6699-6713  CIVIL  CODE. 

6699.  Extinction  by  cancellation,  etc. 

Sec.  1699.  The  destruction  or  cancellation  of  a  written  contract,  or  of  the  sig- 
nature of  the  parties  liable  thereon,  with  intent  to  extinguish  the  obligation 
thereof,  extinguishes  it  as  to  all  the  25arties  consenting  to  the  act. 

6700.  Extinction  by  unauthorized  alteration. 

Sec.  1700.  The  intentional  destruction,  cancellation,  or  material  alteration  of 
a  written  contract,  by  a  party  entitled  to  any  benefit  under  it,  or  with  his  con- 
sent, extinguishes  all  the  executory  obligations  of  the  contract  in  his  favor, 
against  parties  who  do  not  consent  to  the  act. 

6701.  Alteration  of  diiplicate  not  to  prejudice. 

Sec.  1701.  "Where  a  contract  is  executed  in  duplicate,  an  alteration  or 
destruction  of  one  copy,  while  the  other  exists,  is  not  within  the  provisions  of 
the  last  section. 


P»A.RT    III. 

OBLIGATIONS  IMPOSED  BY  LAW. 

6708.  Abstinence  from  injury. 

Sec.  1708.  Every  person  is  bound,  without  contract,  to  abstain  from  injuring 
the  person  or  property  of  another,  or  infringing  upon  any  of  his  rights. 

6709.  Fraudulent  deceit. 

Sec.  1709.  One  who  willfully  deceives  another  with  intent  to  induce  him  to 
alter  his  position  to  his  injury  or  risk,  is  liable  for  any  damage  which  he  thereby 

suffers. 

6710.  Deceit,  what. 

Sec  1710.  A  deceit,  within  the  meaning  of  the  last  section,  is  either: 

1.  The  suggestion,  as  a  fact,  of  that  which  is  not  true,  by  one  who  does  not 
believe  it  to  be  tiaie; 

2.  The  assertion,  as  a  fact,  of  that  which  is  not  true,  by  one  who  has  no 
reasonable  ground  for  believing  it  to  be  true; 

3.  The  suppression  of  a  fact,  by  one  who  is  bound  to  disclose  it,  or  who  gives 
information  of  other  facts  which  are  likely  to  mislead  for  want  of  communica- 
tion of  that  fact;  or, 

4.  A  promise,  made  without  any  intention  of  performing  it. 

6711.  Deceit  upon  the  public,  etc. 

Sec  1711.  One  who  practices  a  deceit  with  intent  to  defraud  the  public,  or  a 
particular  class  of  persons,  is  deemed  to  have  intended  to  defraud  every  indi- 
vidual in  that  class,  who  is  actually  misled  by  the  deceit, 

6712.  licHtoration  of  thing  ivrongfully  acquired. 

Sec  1712.  One  who  obtains  a  thing  without  the  consent  of  its  owner,  or  by  a 
consent  aftei'wards  rescinded,  or  by  an  unlawful  exaction  which  the  owner  could 
not  at  the  time  jji-udently  refuse,  must  restore  it  to  the  person  from  whom  it 
was  thus  obtained,  unless  he  has  acquired  a  title  thereto  superior  to  that  of 
such  other  person,  or  unless  the  transaction  was  corrujat  and  unlawful  on  both 
sides. 

6713.  Wien  demand  necessary. 

Sec  1713.  The  restoration  required  by  the  last  section  must  be  made  without 

760 


SALE.  6713-6715 

demand,  except  where  a  tliiug  is  obtained  by  mutual  mistake,  in  wliich  case 
the  party  obtaining  the  thing  is  not  bound  to  return  it  until  he  has  notice  of 
the  mistake. 

6714.  BesponHibility  for  willful  acts,  negligence,  etc. 

Sec.  1714.  Every  one  is  responsible,  not  only  for  the  result  of  his  -willful  acts, 
but  also  for  an  injury  occasioned  to  another  by  his  want  of  ordinary  care  or 
skill  in  the  management  of  his  joroperty  or  person,  except  so  far  as  the  latter 
has,  willfully  or  by  want  of  ordinary  care,  brought  the  injury  upon  himself. 
The  extent  of  liability  in  such  cases  is  defined  by  the  title  on  compensatory 
relief. 

6715.  Other  obligations. 

Sec.  1715.  Other  obligations  are  prescribed  by  Divisions  I  and  II  of  this  Code. 


PART    IV. 

OBLIGATIONS  AKISING  FEOM  PAETICULAR  TEANSACTIONS. 

Title  I.  Sale 6721 

11.  Exchange 6804 

III.  Deposit 6813 

IV.  Loan 6884 

V.  Hiring 6925 

VI.  Service 6965 

VII.  Carriage 7085 

VIII.  Trust 7215 

IX.  Agency 7295 

X.  Partnership 7395 

XI.  Insurance 7527 

XII.  Indemnity 7772 

XIII.  Guaranty 7787 

XIV.  Lien 7872 

XV.  Negotiable  Instruments 8086 

XVI.  General  Proyisions 8268 


TITLE  I. 


Sale. 


Chapter  I.   General  Provisions 6721 

II.  Eights  and  Obligations  of  the  Seller 6748 

III.  Eights  and  Obligations  of  the  Buyer 6784 

IV.  Sale  by  Auction 6792 

CHAPTEE  I. 

GENERAL   PROYISIONS. 

Article  I.  Sale 6721 

II.  Agkkements  for  Sale 6726 

III.    FOKM   OF  THE    CoNTKACT 6739 

761 


6721-6734  CIVIL  CODE. 

AKTICLE  I. 

SALE. 

6721.  Sale,  what. 

Sec.  1721.  Sale  is  a  contract  by  which,  for  a  pecuniary  consideration,  called  a 
price,  one  transfers  to  another  an  interest  in  pro^^erty. 

6722.  Subject  of  sale. 

Sec.  1722.  The  subject  of  sale  umst  be  property,  the  title  to  which  can  be 
immediately  transferred  from  the  seller  to  the  buyer. 

AETICLE   II. 

AGREEMENTS    FOR    SALE. 

6726.  Agreement  for  sale. 

Sec.  1726.  An  agreement  for  sale  is  either: 

1.  An  agreement  to  sell; 

2.  An  agreement  to  buy ;  or, 

3.  A  mutual  agreement  to  sell  and  buy. 

6727.  Agreement  to  sell. 

Sec.  1727.  An  agreement  to  sell  is  a  contract  by  which  one  engages,  for  a 
price,  to  transfer  to  another  the  title  to  a  certain  thing. 

6728.  Agreement  to  buy. 

Sec  1728.  An  agreement  to  buy  is  a  contract  by  which  one  engages  to 
accept  from  another,  and  pay  a  j)rice  for  the  title  to  a  certain  thing. 

6729.  Agreement  to  sell  and  buy. 

Sec  1729.  An  agreement  to  sell  and  buy  is  a  contract  by  which  one  engages 
to  transfer  the  title  to  a  certain  thing  to  another,  who  engages  to  accept  the 
same  from  him  and  to  pay  a  jDrice  therefor. 

6730.  What  may  be  the  subject  of  the  contract. 

Sec.  1730.  Any  property  which,  if  in  existence,  might  be  the  subject  of  sale, 
may  be  the  subject  of  an  agreement  for  sale,  whether  in  existence  or  not. 

6731.  Agreement  to  sell  real  j)roperty . 

Sec  1731.  An  agreement  to  sell  real  property  binds  the  seller  to  execute  a 
conveyance  in  form  sufficient  to  pass  the  title  to  the  jDropei-ty.  [Amendment , 
approved  March  30,  1874;  Amendments  1873-4,  243;  took  effect  July  1,  1874.'^> 

6732.  [Sec  1732<''>  was  repealed   by  act  approved   March  30,  1874;  Amend- 
ments 1873-4,  243;  took  effect  July  1,  3874.1 

6733.  Usual  common  laio  covenants  required  by  such  contracts,  when. 

Sec  1733.  An  agreement  on  the  part  of  a  seller  of  real  property  to  give  the 
usual  covenants,  binds  him  to  insert  in  the  grant  covenants  of  "seizin,"  "quiet 
enjoyment,"  "further  assurance,"  " general  warranty,"  and  " against  incum- 
brances." 

6734.  Form  of  such  covenants. 

Sec  1734.  The  covenants  mentioned  in  the  last  section  must  be  in  substance 
as  follows:  "The  party  of  the  first  part  covenants  with  the  party  of  the  second 
part,  that  the  former  is  now  seized  in  fee  simple  of  the  i:)roi5erty  granted;  that 
the  latter  shall  enjoy  the  same  without  any  lawful  disturbance;  that  the  same 
is  free  from  all  incumbrances;  that  the  pai'ty  of  the  first  part,  and  all  persons 
acquiring  any  interest  in  the  same  through  or  for  him,  will,  on  demand,  execute 

(a)  Original  section:  (6)  Repealed  section: 

Sbc.  17:U.  An  atjreempnt  to  Bf-U  real  property  binds  Sec   1732.  An  agreement  to  sell  real  property  binds 

the  seller  to  execute  a  grunt  in  the  form   and    man-  the  Bcller  to  execute  a  grant  in  the  form  prescribed  by 

ner  prescribed  by  the  c  hapter  on  transfers  of  real  prop-  section  1092. 
erty. 

762 


SALE.  6734-6749 

and  deliver  to  the  party  of  the  second  part,  at  the  expense  of  the  latter,  any- 
further  assurance  of  the  same  that  may  be  reasonably  required;  and  that  the 
party  of  the  first  part  will  warrant  to  the  party  of  the  second  part  all  the  said 
property  against  every  person  lawfully  claiming  the  same." 

AETICLE  III. 

FORM    OF    THE    CONTRACT. 

6739.  Contract  for  sale  of  personal  property. 

Sec  1739.  No  sale  of  personal  property,  or  agreement  to  buy  or  sell  it  for  a 
price  of  two  hundred  dollars  or  more,  is  valid,  unless: 

1.  The  agreement  or  some  note  or  memorandum  thereof  be  in  writing,  and 
subscribed  by  the  party  to  be  charged,  or  by  his  agent;  or, 

2.  The  buyer  accepts  and  receives  part  of  the  thing  sold,  or  when  it  consists 
of  a  thing  in  action,  part  of  the  evidences  thereof,  or  some  of  them;  or, 

3.  The  buyer,  at  the  time  of  sale,  pays  a  pai't  of  the  price.  [Amendment,  ap- 
proved Ifarvh  30,  1874;  Amendments  1873-4,  243;  took  eject  July  1,  1874.^"^ 

6740.  Contract  to  mariufacture. 

Sec.  1740.  An  agreement  to  manufacture  a  thing,  from  materials  furnished  by 
the  manufacturer,  or  by  another  person,  is  not  within  the  provisions  of  the  last 
section. 

6741.  Contract  for  sale  of  real  property. 

Sec  1741.  No  agreement  for  the  sale  of  real  property,  or  of  an  interest  therein, 
is  valid,  unless  the  same,  or  some  note  or  memorandum  thereof,  be  in  writing, 
and  subscribed  by  the  party  to  be  charged,  or  his  agent,  thereunto  authorized, 
in  writing;  but  this  does  not  abridge  the  power  of  any  court  to  compel  the  spe- 
cific performance  of  any  agreement  for  the  sale  of  real  property  in  case  of  jDart 
performance  thereof.  [Amendment,  approved  Ilarch  30,  1874;  Amendments 
1873-4,  243;  took  effect  July  1,  1874.^"' 

CHAPTER  II. 

BIGHTS  AND   OBLIGATIONS   OF   THE   SELLEE. 

Article  I.  Eights  and  Duties  befoee  Delivery 6748 

II.  Delivery 6753 

III.  Warranty 6763 

ARTICLE  I. 

RIGHTS    AND    DUTIES    BEFORE   DELIVERY. 

6748.  When  seller  must  act  as  depositary. 

Sec.  1748.  After  personal  property  has  been  sold,  and  until  the  delivery  is 
completed,  the  seller  has  the  rights  and  obligations  of  a  depositary  for  hire, 
except  that  he  must  keep  the  property,  without  charge,  until  the  buyer  has  had 
a  reasonable  opportunity  to  remove  it. 

6749.  When  seller  may  resell. 

Sec  1749.  If  a  buyer  of  personal  property  does  not  pay  for  it  according  to 

(a)  The  original  section  differed  in  the  first  and  sec-  or  of  any  estate  therein,  other  than  an  estate  for  a  term 

end  subdivisions.    The  first  was  as  follows:  not  exceeding  one  year,  is  valid,  unless  a  mcnnorandum 

"1.  A  memorandum  of  the  contract,  showing  the  par-  thereof,  showing  the  parties,  their  consent,  and  the 

ties,  their  consent,  and  the  subject  of  sale,  is  made  in  subject  of  sale,  is  made  in  writing,  and  subscribed  by 

writing,  and  subscribed  by  the  party  to  be  charged;  the  party  to  be  charged  or  his  agent,  thereunto  author- 

or."  ized    in    writing,    or   unices   the    contract    has   been 

The  second  subdivision  did  not  have  the  words  "  or  partially  performed  by  the  party  seeking  to  enforce  it, 

some  of  them."  and  such  part  performauce  has  been  accepted   by  the 

(6)   Original  section:  other. 

Sec,  1741.  No  agreement  for  the  sale  of  real  property, 

763 


6749-6767  CIYIL  CODE. 

contract,  and  it  remains  in  the  joossession  of  the  seller  after  payment  is  due, 
the  seller  may  rescind  the  sale,  or  may  enforce  his  lien  for  the  price,  in  the 
manner  j)rescribed  by  the  title  on  liens. 

AKTICLE  II. 

DELIVERY. 

6753.  Delivery  on  demand. 

Sec.  1753.  One  who  sells  personal  property,  whether  it  was  in  his  possession 
at  the  time  of  sale  or  not,  must  put  it  into  a  condition  fit  for  delivery,  and  de- 
liver it  to  the  buyer  within  a  reasonable  time  after  demand,  unless  he  has  a  lien 
thereon. 

6754.  Delivery,  where  made. 

Sec.  1754.  Personal  property  sold  is  deliverable  at  the  jDlace  where  it  is  at 
the  time  of  the  sale  or  agreement  to  sell,  or  if  it  is  not  then  in  existence,  it  is 
deliverable  at  the  place  where  it  is  j)roduced. 

6755.  Expense  of  transporlalion. 

Sec  1755.  One  who  sells  jiersonal  property  must  bring  it  to  his  own  door,  or 
other  convenient  place,  for  its  acceptance  by  the  buyer,  but  further  transporta- 
tion is  at  the  risk  and  expense  of  the  buyer. 

6756.  Notice  of  election  as  to  delivery. 

Sec.  1756.  When  either  party  to  a  contract  of  sale  has  an  option  as  to  the 
time,  place,  or  manner  of  delivery,  he  must  give  the  other  party  reasonable 
notice  of  his  choice;  and  if  he  does  not  give  such  notice  within  a  reasonable 
time,  his  right  of  option  is  waived. 

6757.  Buyer's  directions  as  to  manner  of  sending  things  sold. 

Sec.  1757.  If  a  seller  agrees  to  send  the  thing  sold  to  the  buyer,  he  must 
follow  the  directions  of  the  latter  as  to  the  manner  of  sending,  or  it  will  be  at 
his  own  risk  during  its  transportation.  If  he  follows  such  directions,  or  if,  in 
the  absence  of  special  directions  he  uses  ordinary  care  in  forwarding  the  thing, 
it  is  at  the  risk  of  the  buyer. 

6758.  Delivery  to  be  within  reasonable  hours. 

Sec.  1758.  The  delivery  of  a  thing  sold  can  be  ofifered  or  demanded  only 
within  reasonable  hours  of  the  day. 

AETICLE  III. 

WARRANTY. 

6763.  Warranty,  what. 

Sec  17G3.  A  warranty  is  an  engagement  by  which  a  seller  assures  to  a  buyer 
the  existence  of  some  fact  affecting  the  transaction,  whether  past,  present,  or 
future. 

6764.  No  implied  warranty  in  mere  contract  of  sale. 

Sec  1764.  Except  as  prescribed  by  this  article,  a  mere  contract  of  sale  or 
agreement  to  sell  does  not  imply  a  warranty. 

6765.  Warranty  of  title  to  personal  property. 

Sec  1765.  One  who  sells  or  agrees  to  sell  personal  property,  as  his  own, 
thereby  warrants  that  he  has  a  good  and  unincumbered  title  thereto. 

6766.  Warranty  on  sale  by  sample. 

Sec  1766.  One  who  sells  or  agrees  to  sell  goods  by  sample,  thereby  warrants 
the  bulk  to  be  equal  to  the  sample. 

6767.  When  seller  knows  that  buyer  relies  on  his  statements. 

Sec  1767.  One  who  sells  or  agrees  to  sell  personal  i^roperty,  knowing  that 

764 


SALE.  6767-6778 

the  buyer  relies  upon  his  advice  or  judgment,  thereby  wan'ants  to  the  buyer 
that  neither  the  seller,  nor  any  agent  employed  by  him  in  the  transaction, 
knows  the  existence  of  any  fact  concerning  the  thing  sold  which  would,  to  his 
knowledge,  destroy  the  buyer's  inducement  to  buy. 

6768.  Merchandise  not  in  existence. 

Sec.  1768.  One  who  agrees  to  sell  merchandise  not  then  in  existence,  thereby 
warrants  that  it  shall  be  sound  and  merchantable  at  the  place  of  production 
contemplated  by  the  parties,  and  as  nearly  so,  at  the  place  of  delivery,  as  can 
be  secured  by  reasonable  care. 

6769.  Manufacturer' s  warranty  against  latent  defects. 

Sec.  1769.  One  who  sells  or  agrees  to  sell  an  article  of  his  own  manufacture 
thereby  warrants  it  to  be  free  from  any  latent  defect,  not  disclosed  to  the  buyer, 
arising  from  the  process  of  manufacture,  and  also  that  neither  he  nor  his  agent 
in  such  manufacture  has  knowingly  used  improper  materials  therein. 

6770.  Thing  hoitght  for  particular  purpose. 

Sec.  1770.  One  who  manufactures  an  article  under  an  order  for  a  particular 
purpose,  warrants  by  the  sale  that  it  is  reasonably  fit  for  that  purpose. 

6771.  When  thing  cannot  he  examined  by  buyer. 

Sec.  1771.  One  who  sells  or  agrees  to  sell  merchandise  inaccessible  to  the 
examination  of  the  buyer,  thereby  warrants  that  it  is  sound  and  merchantable. 

6772.  Trade-marks. 

Sec.  1772.  One  who  sells  or  agrees  to  sell  any  article  to  which  there  is 
affixed  or  attached  a  trade-mark,  thereby  warrants  that  mark  to  be  genuine  and 
lawfully  used. 

6773.  Other  marks. 

Sec.  1773.  One  who  sells  or  agrees  to  sell  any  article  to  which  there  is 
affixed  or  attached  a  statement  or  mark  to  express  the  quantity  or  quality  thereof, 
or  the  place  where  it  was,  in  whole  or  in  part,  produced,  manufactured,  or  pre- 
pared, thereby  warrants  the  truth  thereof. 

6774.  Warranty,  on  sale  of  written  instrument. 

Sec.  1774.  One  who  sells  or  agrees  to  sell  an  instrument  purporting  to  bind 
any  one  to  the  performance  of  an  act,  thereby  warrants  that  he  has  no  knowl- 
edge of  any  facts  which  tend  to  prove  it  worthless,  such  as  the  insolvency  of 
any  of  the  parties  thereto,  where  that  is  material,  the  extinction  of  its  obliga- 
tions, or  its  invalidity  for  any  cause.  [Amendment,  approved  March  30,  1874; 
Amendments  1873-4,  244;  took  effect  July  1,  1874.<'" 

6775.  Warranty  of  provisions  for  domestic  use. 

Sec  1775.  One  who  makes  a  business  of  selling  provisions  for  domestic  use 
warrants  by  a  sale  thereof,  to  one  who  buys  for  actual  consumption,  that  they 
are  sound  and  wholesome. 

6776.  Warranty  on  sale  of  good  ivill. 

Sec.  1776.  One  who  sells  the  good  will  of  a  business  thereby  warrants  that  he 
will  not  endeavor  to  draw  off  any  of  the  customers. 

6777.  War raiity  upon  judicial  sale. 

Sec  1777.  Upon  a  judicial  sale,  the  only  warranty  implied  is  that  the  seller 
does  not  know  that  the  sale  will  not  pass  a  good  title  to  the  property. 

6778.  Effect  of  general  warranty. 

Sec  1778.  A  general  warranty  does  not  extend  to  defects  inconsistent  there- 
in) The  original  eection  after  "  warrants  "  had  the     its  purport  iipon  all  the  parties  thereto;  and  also  war- 
following   additional   words:   "  the  instrument  fo  be     rants." 
what  it  purports  to  be,  and  to  be  binding  according  to 

765 


6778-6798  CIVIL  CODE. 

with  of  whicli  the  buyer  was  then  aware,  or  which  were  then  easily  discernible 
by  him  without  the  exercise  of  i)eculiar  skill;  but  it  extends  to  all  other  de- 
fects. 

CHAPTEE  III. 

EIGHTS   AND   OBLIGATIONS   OF   THE   BUYER. 

6784.  Price,  token  to  be  paid. 

Sec.  1784.  A  buyer  must  pay  the  price  of  the  thing  sold  on  its  delivery,  and 
must  take  it  away  within  a  reasonable  time  after  the  seller  offers  to  deliver  it. 

6785.  Iiight  to  inspect  goods. 

Sec.  1785.  On  an  agreement  for  sale,  with  warranty,  the  buyer  has  a  right  to 
inspect  the  thing  sold,  at  a  reasonable  time,  before  accepting  it;  and  may 
rescind  the  contract  if  the  seller  refuses  to  permit  him  to  do  so. 

6786.  JRiglUs  in  case  of  breach  of  loarranty. 

Sec.  178G.  The  breach  of  a  warranty  entitles  the  buyer  to  rescind  an  agree- 
ment for  sale,  but  not  an  executed  sale,  unless  the  warranty  was  intended  by 
the  parties  to  operate  as  a  condition. 

CHAPTER  IV. 

SALE   BY   AUCTION. 

6792.  Sale  by  auction,  what. 

Sec  1792.  A  sale  by  auction  is  a  sale  by  public  outcry  to  the  highest  bidder 
on  the  spot. 

6793.  Sale,  when  complete. 

Sec.  1793.  A  sale  by  auction  is  complete  when  the  auctioneer  publicly  an- 
nounces, by  the  fall  of  his  hammer,  or  in  any  other  customary  manner,  that 
the  thing  is  sold. 

6794.  Withdraical  of  bid. 

Sec.  1794.  Until  the  announcement  mentioned  in  the  last  section  has  been 
made,  any  bidder  may  withdraw  his  bid,  if  he  does  so  in  a  manner  reasonably 
sufficient  to  bring  it  to  the  notice  of  the  auctioneer. 

6795.  Sale  under  xoritlen  conditions. 

Sec.  1795.  When  a  sale  by  auction  is  made  ujoon  written  or  printed  conditions, 
such  conditions  cannot  be  modified  by  auy  oral  declaration  of  the  auctioneer, 
except  so  far  as  they  are  for  his  own  benefit. 

6796.  Rights  of  buyer  upon  sale  xoilhout  reserve. 

Sec.  179G.  If,  at  a  sale  by  auction,  the  auctioneer,  having  authority  to  do  so, 
publicly  announces  that  the  sale  will  be  without  reserve,  or  makes  any  an- 
nouncement equivalent  thereto,  the  highest  bidder  in  good  faith  has  an  absolute 
right  to  the  completion  of  the  sale  to  him;  and,  upon  such  a  sale,  bids  by  the 
seller,  or  any  agent  for  him,  are  void. 

6797.  J',y  bidding. 

Sec.  1797.  The  employment  by  a  seller  of  any  person  to  bid  at  a  sale  by 
auction,  without  the  knowledge  of  the  buyer,  without  an  intention  on  the  part 
of  such  bidder  to  Ijuy,  and  on  the  part  of  the  seller  to  enforce  his  bid,  is  a  fraud 
upon  the  buyer,  which  entitles  him  to  rescind  his  purchase. 

6798.  Auctioneer's  niemorandnm  of  sale. 

Sec  1798.  When  property  is  sold  by  auction,  an  entry  made  by  the  auctioneer, 
in  his  sale-book,  at  the  time  of  the  sale,  specifying  the  name  of  the  person  for 
whom  he  sells,  the  thing  sold,  the  price,  the  terms  of  sale,  and  the  name  of  the 

7CG 


DEPOSIT.  G798-6814 

buyer,  binds  both  the  parties  in  the  same  manner  as  if  made  by  themselves. 
[Amendmeyit,  approved  31arch  30, 1874;  Amendvients  1873-4,  244;  took  cffecl  July 
1,  1874.'^) 


TITLE  II. 

6804.  Exchange,  what. 

Sec.  1804.  Exchange  is  a  contract  by  which  the  parties  mutually  give,  or 
agree  to  give,  one  thing  for  another,  neither  thing,  or  both  things,  being  money 
only. 

6805.  Form  of  contract. 

Sec.  1805.  The  j^rovisions  of  section  1739  apply  to  all  exchanges  in  which  the 
value  of  the  thing  to  be  given  by  either  party  is  two  hundred  dollars  or  more. 

6806.  Parties  have  rights  and  obligations  of  sellers  and  buyers. 

Sec  1806.  The  jorovisions  of  the  title  on  sale  apply  to  exchanges.  Each  party 
has  the  rights  and  obligations  of  a  seller  as  to  the  thing  which  he  gives,  and  of 
a  buyer  as  to  that  which  he  takes. 

6807.  Warranty  of  money . 

Sec.  1807.  On  an  exchange  of  money,  each  party  thereby  warrants  the  genu- 
ineness of  the  money  given  by  him. 


TITLE   III. 


Chapter  I.  Deposit  in  General 6813 

II.  Deposit  foe  Keeping 6833 

III.  Deposit  for  Exchange 6878 

CHAPTEK  I. 

DEPOSIT    IN    GENERAL. 

Article  I.  Natdbe  and  Creation  of  Deposit 6813 

II.  Obligations  of  the  Depositary tJ822 

AETICLE  I. 

nature  and  creation  of  deposit. 

6813.  Deposit,  kinds  of. 

Sec.  1813.  A  deposit  may  be  voluntary  or  involuntary;  and  for  safe  keeping  or 
for  exchange. 

6814.  Voluntary  deposit,  how  made. 

Sec.  1814.  A  voluntary  deposit  is  made  by  one  giving  to  another,  with  his 
consent,  the  possession  of  personal  property  to  keep  for  the  benefit  of  the 
former,  or  of  a  third  party.  The  person  giving  is  called  the  depositor,  and  the 
person  receiving  the  depositary. 

(a)  OriBinal  Bectlon-  thing  sold,  the  price,  the  termB  of  sale,  and  the  name 

Sec.  1798.  Whon  property  is  Bold   by  auction,   the  of  the  buyer.     A  memorandum  thus  made  binds  both 

auctioneer,  or  his  partner  or  clerli,  may  enter  in  a  Bale  the  parties  in  the  same  manner  as  if  made  by  them- 

boolL,  at  the  time  of  the  sale,  a  memorandum  specify-  selves. 

ing  the  name  of  the  person  for  whom  he  boUs,  the 

767 


6815-G827  CH'IL  CODE. 

6815.  Involuntary  deposit,  hoiv  made. 

Sec.  1815.  An  involuntary  deposit  is  made: 

1.  By  the  accidental  leaving  or  placing  of  personal  property  in  the  possession 
of  any  person,  without  negligence  on  the  part  of  its  owner;  or, 

2.  In  cases  of  fire,  shipwreck,  inundation,  insurrection,  riot,  or  like  extraor- 
dinary emergencies,  by  the  owner  of  personal  property  committing  it,  out  of 
necessity,  to  the  care  of  any  person. 

6816.  Same. 

Sec.  1816.  The  person  with  whom  a  thing  is  deposited  in  the  manner  described 
in  the  last  section  is  bound  to  take  charge  of  it,  if  able  to  do  so. 
[As  to  involuntary  trust  resulting  from  negligence,  see  j)0st,  7224:.] 

6817.  Deposit  for  safe  keeping,  xohai. 

Sec.  1817.  A  deposit  for  keeping  is  one  in  which  the  depositary  is  bound  to 
return  the  identical  thing  dej^osited. 

6818.  Deposit  for  exchange,  ichat. 

Sec  1818.  A  deposit  for  exchange  is  one  in  which  the  depositary  is  only 
bound  to  return  a  thing  corresponding  in  kind  to  that  which  is  deposited. 

ARTICLE  II. 

OBLIGATIONS    OF    THE    DEPOSITARY. 

6822.  Depositary  must  deliver  on  demand. 

Sec.  1822.  A  depositary  must  deliver  the  thing  to  the  person  for  whose  benefit 
it  was  deposited,  on  demand,  whether  the  dejDOsit  was  made  for  a  specified  time 
or  not,  unless  he  has  a  lien  upon  the  thing  deposited,  or  has  been  forbidden  or 
prevented  from  doing  so  by  the  real  owner  thereof,  or  by  the  act  of  the  law, 
and  has  given  the  notice  required  by  section  1825. 

6823.  No  obligation  to  deliver  without  demand. 

Sec.  1823.  A  dejDOsitary  is  not  bound  to  deliver  a  thing  deposited  without 
demand,  even  where  the  deposit  is  made  for  a  s^DCcified  time. 

6824.  Place  of  delivery. 

Sec.  1824.  A  depositary  must  deliver  the  thing  deposited  at  his  residence  or 
place  of  business,  as  may  be  most  convenient  for  him. 

6825.  Notice  to  owner  of  adverse  claim. 

Sec.  1825.  A  depositary  must  give  prompt  notice  to  the  person  for  whose 
benefit  the  dei)osit  was  made,  of  any  proceedings  taken  adversely  to  his  interest 
in  the  thing  deposited,  which  may  tend  to  excuse  the  depositary'  from  delivering 
the  thing  to  him. 

6826.  Xofice  to  ovmer  of  thing  wrongfully  detained. 

Se<;.  182G.  A  depositary,  who  believes  that  a  thing  de^josited  with  him  is 
wi'ongfully  detained  from  its  true  owner,  may  give  him  notice  of  the  dejjosit; 
and  if  within  a  reasonable  time  afterwards  he  does  not  claim  it,  and  sufficiently 
establish  his  right  thereto,  and  indemnify  the  depositary  against  the  claim  of 
the  depositor,  the  depositaiy  is  exonerated  from  liability  to  the  person  to  whom 
he  gave  the  notice,  upon  returning  the  tbing  to  the  depositor,  or  assuming,  in 
good  faith,  a  new  obligation  changing  his  j^osition,  in  respect  to  the  thing,  to 
his  prejudice. 

6827.  Delivery  of  thing  owned  jointly ,  etc. 

Sec.  1827.  If  a  thing  deposited  is  owned  jointly  or  in  common  by  persons  who 
cannot  agree  upon  the  manner  of  its  deliveiy,  the  dej^ositary  may  deliver  to 
each  his  proper  share  thereof,  if  it  can  be  done  without  injury  to  the  thing. 

768 


DEPOSIT.  G833-G840 

CHAPTEE  II. 

DEPOSIT  FOR   KEEPING. 

Aeticle    I.  General  Provisions G833 

II    Gratuitods  Deposit V)H-i'k 

III.  Storage 0^51 

IV.  Innkeepers 6859 

V.  Finding 086-1 

ARTICLE   I. 

GENERAL     PROVISIONS. 

6833.  Depositor  must  indemnify  depositary. 

Sec.  1833.  A  depositor  must  mdemnify  the  depositary: 

1.  For  all  damage  caused  to  bim  by  the  defects  or  vices  of  the  thing  de- 
posited; and, 

2.  For  all  expenses  necessarily  incurred  by  him  about  the  thing,  other  than 
such  as  are  involved  in  the  nature  of  the  undertaking. 

6834.  Obligation  of  depositary  of  animals. 

Sec.  1834.  A  dejDOsitary  of  living  animals  must  provide  them  with  suitable 
food  and  shelter,  and  treat  them  kindly. 

6335.   Obligations  as  to  use  of  thing  deposited. 

Sec.  1835,  A  depositary  may  not  use  the  thing  deposited,  or  permit  it  to  be 
used,  for  any  purpose,  without  the  consent  of  the  depositor.  He  may  not,  if  it 
is  purposely  fastened  by  the  depositor,  open  it  without  the  consent  of  the  latter, 
except  in  case  of  necessity. 

6836.  Liability  for  damage  arising  from  %vrongful  use. 

Sec.  1836.  A  depositary  is  liable  for  any  damage  happening  to  the  thing 
deposited,  during  his  wrongful  use  thereof,  unless  such  damage  must  inevitably 
have  hapjDened  though  |;he  proj)erty  had  not  been  thus  used. 

6837.  Sale  of  thing  in  danger  of  perishing. 

Sec.  1837.  If  a  thing  deposited  is  in  actual  danger  of  perishing  before  in- 
structions can  be  obtained  from  the  depositor,  the  dejoositary  may  sell  it  for  the 
best  price  obtainable,  and  retain  the  proceeds  as  a  deposit,  giving  immediate 
notice  of  his  proceedings  to  the  depositor, 

6838.  Injury  to,  or  loss  of  thing  deposited. 

Sec.  1838.  If  a  thing  is  lost  or  injured  during  its  deposit,  and  the  dejDositary 
refuses  to  inform  the  depositor  of  the  circumstances  under  which  the  loss  or 
injury  occurred,  so  far  as  he  has  information  concerning  them,  or  willfully 
misrepresents  the  circumstances  to  him,  the  depositary  is  presumed  to  have 
willfully,  or  by  gross  negligence,  j)ermitted  the  loss  or  injury  to  occur. 

6839.  Service  rendered  by  depositary. 

Sec.  1839.  So  far  as  any  service  is  rendered  by  a  depositaiy,  or  required  from 
him,  his  duties  and  liabilities  are  prescribed  by  the  title  on  employment  and 
service. 

6840.  Limitation  of  liability  of  depositing  for  negligence. 

Sec.  1840.  The  liability  of  a  depositaiy  for  negligence  cannot  exceed  the 
amount  which  he  is  informed  by  the  depositor,  or  has  reason  to  suppose,  the 
thing  deposited  to  be  worth.  [Amendment,  apjiJ^oved  3Iarch  30,  1874;  Amend- 
ments 1873-4,  244;  took  effect  July  1,  1874.*''^ 

(a)  The  original  section,  instead  of  "  cannot  exceed,"  had  the  words  "  is  limited  to." 

49  769 


G844-G860  CIVIL  CODE. 

ARTICLE   II. 

GBATUITOUS    DEPOSIT. 

6844.  Gratuitoui^  deposit,  ^vhaf. 

Sec.  1844.  Gratuitous  deposit  is  a  deposit  for  whicli  the  depositary  receives 
no  consideration  beyond  the  mere  possession  of  the  thing  deposited. 

6845.  Nature  of  involuntary  deposit. 

Sec.  1845.  An  involuntary  deposit  is  gratuitous,  the  depositary  being  entitled 
to  no  reward. 

6846.  Degrees  of  care  required  of  gratuitous  depositary. 

Sec.  184G.  A  gratuitous  depositary  must  use,  at  least,  slight  care  for  the  pres- 
ervation of  the  thing  deposited. 

6847.  His  duties  cease,  when. 

Sec.  1847.  The  duties  of  a  gratuitous  depositary  cease: 

1.  Upon  his  restoring  the  thing  deposited  to  its  owner;  or, 

2.  Upon  his  giving  reasonable  notice  to  the  owner  to  remove  it,  and  the 
owner  failing  to  do  so  within  a  reasonable  time.  But  an  involuntary  deposi- 
tary, vmder  subdivision  2  of  section  1815,  cannot  give  such  notice  until  the 
emergency  which  gave  rise  to  the  deposit  is  past. 

[ARTICLE   III. 

STORAGE. 

6851.  Deposit  for  Idre. 

Sec.  1851.  A  deposit  not  gratuitous  is  called  storage.  The  depositary  in  such 
case  is  called  a  depositary  for  hire. 

6352.  Degree  of  care  required  of  depositary  for  hire. 

Sec.  1852.  A  depositary  for  hire  must  use  at  least  ordinary  care  for  the  j)res- 
ervation  of  the  thing  deposited. 

6853.  Rate  of  compensation  for  fraction  of  a  tveek,  etc. 

Sec  1853.  In  the  absence  of  a  different  agreement  or  usage,  a  depositaiy  for 
hire  is  entitled  to  one  week's  hire  for  the  sustenance  and  shelter  of  living  ani- 
mals during  any  fraction  of  a  week,  and  to  half  a  month's  hire  for  the  storage 
of  any  other  property  during  any  fraction  of  a  half  month. 

6854.  Termination  of  deposit. 

Sec  1854.  In  the  absence  of  an  agreement  as  to  the  length  of  time  during 
which  a  deposit  is  to  continue,  it  may  be  terminated  by  the  depositor  at  any 
time,  and  by  the  depositary  upon  reasonable  notice. 

6855.  Same. 

Sec  1855.  Notwithstanding  an  agreement  resj)ecting  the  length  of  time  dur- 
ing which  a  deposit  is  to  continiae,  it  may  be  terminated  by  the  dejDOsitor  on 
paying  all  that  would  become  due  to  the  depositary  in  case  of  the  deposit  so 
continuing. 

ARTICLE  IV. 

INNKEEPERS. 

6859.  Innkeeper's  liability. 

Sec  1859.  An  innkeeper  is  liable  for  all  losses  of  or  injuries  to  j^ersonal  prop- 
erty placed  by  his  guests  under  his  care,  unless  occasioned  by  an  irresistible 
superhuman  cause,  by  a  public  enemy,  by  the  negligence  of  the  owner,  or  by 
the  act  of  some  one  whom  he  brought  into  the  inn. 

6860.  Hon-  exempted  from  liability. 

Sec  1860.  If  an  innkeei^er  keeps  a  fireproof  safe,  and  gives  notice  to  a  guest, 

770 


DEPOSIT.  G860-G8G3 

either  personally  or  by  putting  up  a  printed  notice  in  a  prominent  place  in  tbe 
room  occupied  by  the  guest,  that  he  keeps  such  a  safe,  and  will  not  be  liable  for 
money,  jewelry,  documents,  or  other  articles  of  unusual  value  and  small  com- 
pass, unless  placed  therein,  he  is  not  liable,  except  so  far  as  his  own  acts  con- 
tribute thereto,  for  any  loss  of  or  injury  to  such  articles,  if  not  deposited  with 
him,  and  not  required  by  the  guest  for  present  use. 

6861.  Liens  by  hotel,  inn,  hoarding-house,  and  lodging-house  keepers. 

Sec.  1861.  Hotel,  inn,  boarding-house  and  lodging-house  keepers  shall  have 
a  lien  upon  the  baggage  and  other  j^roperty  of  value  of  their  guests,  or  boarders, 
or  lodgers,  brought  into  such  hotel,  inn,  or  boarding  or  lodging-hoixse,  by  such 
guests,  or  boarders,  or  lodgers,  for  the  proper  charges  due,  from  such  guests, 
or  boarders,  or  lodgers,  for  their  accommodation,  board,  and  lodging,  and 
room  rent,  and  such  extras  as  are  furnished  at  their  request,  with  the  right  to 
the  possession  of  such  baggage  or  other  propert}'  of  value,  until  all  such  charges 
are  j)aid.  [Neio  section,  aioproved  April  1,  187G;  Amendments  1875-G,  78:  look 
effect  from  imssage. 

6862.  Sale  of  unclaimed  baggage  for  storage,  etc. 

Sec.  1862.  Whenever  any  trunk,  carjpet-bag,  valise,  box,  bundle,  or  other 
baggage  has  heretofore  come,  or  shall  hereafter  come  into  the  possession  of  the 
keeper  of  any  hotel,  inn,  boarding  or  lodging-house,  as  such,  and  has  remained 
or  shall  remain  unclaimed  for  the  period  of  six  months,  such  keejDer  may  pro- 
ceed to  sell  the  same  at  public  auction,  and  out  of  the  proceeds  of  such  sale 
may  retain  the  charges  for  storage,  if  any,  and  the  expenses  of  advertising  and 
sale  thereof;  but  no  such  sale  shall  be  made  until  the  expiration  of  four  weeks 
from  the  first  publication  of  notice  of  such  sale  in  a  newspaper  published  in  or 
nearest  the  cit}^  town,  village,  or  place  in  which  said  hotel,  inn,  boarding  or 
lodging-house  is  situated.  Said  notice  shall  be  published  once  a  week  for  four 
successive  weeks,  in  some  newspaper,  daily  or  weekly,  of  general  circulation, 
and  shall  contain  a  description  of  each  trunk,  carpet-bag,  valise,  box,  bundle, 
or  other  baggage,  as  near  as  may  be,  the  name  of  the  owner,  if  known,  the 
name  of  such  keeper,  and  the  time  and  place  of  such  sale;  and  the  expenses 
incurred  for  advertising  shall  be  a  lien  upon  such  trunk,  carpet-bag,  valise,  box, 
bundle,  or  other  baggage,  in  a  ratable  proj^ortion,  according  to  the  value  of 
such  piece  of  projoerty,  or  thing,  or  article  sold;  and  in  case  any  balance  aris- 
ing from  such  sale  shall  not  be  claimed  by  the  rightful  owner  within  one  week 
from  the  day  of  said  sale,  the  same  shall  be  paid  into  the  treasury  of  the  county 
in  which  such  sale  took  place;  and  if  the  same  be  not  claimed  by  the  owner 
thereof  or  his  legal  representatives  within  one  year  thereafter,  the  same  shall  be 
paid  into  the  general  fund  of  said  county.  [New  section,  ap)proved  April  1,  1876; 
Amendments  1K1^~Q>,  78;  took  eff'ect  from  passage. 

6863.  Posting  of  statement  of  charges,  etc. 

Sec.  1863.  Every  keeper  of  a  hotel,  inn,  boarding  or  lodging-house,  shall  post 
in  a  conspicuous  place  in  the  office  or  public  room,  and  in  every  bedroom  of 
said  hotel,  boarding-house,  inn,  or  lodging-house,  a  printed  copy  of  this  sec- 
tion, and  a  statement  of  charge  or  rate  of  charges  by  the  day,  and  for  meals  or 
items  furnished,  and  for  lodging.  No  charge  or  sum  shall  be  collected  or 
received  by  any  such  person  for  any  service  not  actually  rendered,  or  for  any 
item  not  actually  delivered,  or  for  any  greater  or  other  sum  than  he  is  entitled 
to  by  the  general  rules  and  regulations  of  said  hotel,  inn,  boarding  or  lodging- 
house.  For  any  violation  of  this  section,  or  any  j)rovision  herein  contained, 
the  offender  shall  forfeit  to  the  injured  party  three  times  the  amount  of  the 
sum  charged  in  excess  of  what  he  is  entitled  to.  [New  section,  approved  April  1, 
1876;  Amendments  1875-6,  78;  took  effect  from  passage. 

771 


68G4-6878  CFV^IL  CODE. 

AETICLE  Y. 

FINDING. 

6864.  OhUgaiion  of  finder. 

Sec.  18G4.  One  who  finds  a  thing  lost  is  not  bound  to  take  charge  of  it,  but 
if  he  does  so  he  is  thenceforward  a  depositary  for  the  owner,  with  the  rights 
and  obligations  of  a  depositary  for  hire. 

6865.  Finder  to  notify  owner. 

Skc.  1865.  If  the  finder  of  a  thing  knows  or  suspects  who  is  the  owner,  he 
must,  with  reasonable  diligence,  give  him  notice  of  the  finding;  and  if  he  fails 
to  do  so,  he  is  liable  in  damages  to  the  owner,  and  has  no  claim  to  any  reward 
offered  by  him  for  the  recovery  of  the  thing,  or  to  any  compensation  for  his 
trouble  or  expenses. 

6866.  Claimant  to  jyrove  oivnersMp. 

Sec.  186G.  The  finder  of  a  thing  may,  in  good  faith,  before  gi\dng  it  up, 
reqviire  reasonable  proof  of  ownership  from  any  person  claiming  it. 

6867.  Reward,  etc.,  to  finder. 

Sec.  1867.  The  finder  of  a  thing  is  entitled  to  compensation  for  all  expenses 
necessarily  incurred  by  him  in  its  preservation,  and  for  any  other  service 
necessarily  performed  by  him  about  it,  and  to  a  reasonable  reward  for  keeping  it. 

6868.  Finder  may  put  thing  found  on  storage. 

Sec  1868.  The  finder  of  a  thing  may  exonerate  himself  from  liability  at  any 
time  by  placing  it  on  storage  with  any  responsible  person  of  good  character,  at 
a  reasonable  expense. 

6869.  When  finder  may  sell  the  thing  found. 

Sec  1869.  The  finder  of  a  thing  may  sell  it,  if  it  is  a  thing  which  is  com- 
monly the  subject  of  sale,  when  the  owner  cannot,  with  reasonable  diligence, 
be  found,  or,  being  found,  refuses  upon  demand  to  pay  the  lawful  charges  of 
the  finder,  in  the  following  cases: 

1.  "When  the  thing  is  in  danger  of  perishing,  or  of  losing  the  greater  part  of 
its  value;  or, 

2.  AVhen  the  lawful  charges  of  the  finder  amount  to  two  thirds  of  its  value. 

6870.  How  sale  is  to  be  made. 

Sec  1870.  A  sale  under  the  provisions  of  the  last  section  must  be  made  in 
the  same  manner  as  the  sale  of  a  thing  pledged. 

6871.  Surrender  of  thing  to  the  finder. 

Sec  1871.  The  owner  of  a  thing  found  may  exonerate  himself  from  the  claims 
of  the  finder  by  sui-rendering  it  to  him  in  satisfaction  thereof. 

6872.  Thing  abandoned. 

Sec  1872.  The  provisions  of  this  article  have  no  application  to  things  which 
have  been  intentionally  abandoned  by  their  owners. 

CHAPTER  III. 

DEPOSIT  FOR  EXCHANGE. 

G878.  Jielatiorts  of  the  parties. 

Sec  1878.  A  deposit  for  exchange  transfers  to  the  dei:)Ositary  the  title  to  the 
thing  deposited,  and  creates  between  him  and  the  depositor  the  relation  of 
debtor  and  creditor  merely. 

772 


LOAN.  C884-G894 

TITLE  IV. 

Chapter   I.  Loan  ron  Use 0884 

II.  Loan  for   Exchange ; G902 

III.  Loan  of  Money G912 

CHAPTER  I. 

LOAN  FOR  USE. 

6884.  Loan,  what. 

Sec.  1884.  A  loan  for  use  is  a  contract  by  which  one  gives  to  another  the 
temporary  possession  and  use  of  personal  property,  and  the  latter  agrees  to  re- 
turn the  same  thing  to  him  at  a  future  time,  without  reward  for  its  use. 

6885.  Title  to  property  lent. 

Sec.  1885.  A  loan  for  use  does  not  transfer  the  title  to  the  thing;  and  all  its 
increase  during  the  period  of  the  loan  belongs  to  the  lender. 

6886.  Care  required  of  bon^ower. 

Sec.  1886.  A  borrower  for  use  must  use  great  care  for  the  preservation  in 
safety  and  in  good  condition  of  the  thing  lent. 

6887.  Same. 

Sec.  1887.  One  who  borrows  a  living  animal  for  use,  must  treat  it  with  great 
kindness,  and  provide  everything  necessary  and  suitable  for  it. 

6888.  Degree  of  skill. 

Sec.  1888.  A  borrower  for  use  is  bound  to  have  and  to  exercise  such  skill  in 
the  care  of  the  thing  lent  as  he  causes  the  lender  to  believe  him  to  possess. 

6889.  Borrower ,  when  to  repair  injuries. 

Sec.  1889.  A  borrower  for  use  must  repair  all  deteriorations  or  injuries  to 
the  thing  lent,  which  are  occasioned  by  his  negligence,  however  slight. 

6890.  Use  of  thing  lent. 

Sec  1890.  The  borrower  of  a  thing  for  use  may  use  it  for  such  purposes  only 
as  the  lender  might  reasonably  anticipate  at  the  time  of  lending. 

6891.  Eelending  forbidden. 

Sec  1891.  The  borrower  of  a  thing  for  use  must  not  part  with  it  to  a  third 
person,  without  the  consent  of  the  lender. 

6892.  Borrower,  ivhen  to  bear  expenses. 

Sec  1892.  The  borrower  of  a  thing  for  use  must  bear  all  its  expenses  during 
the  loan,  except  such  as  are  necessarily  incurred  by  him  to  preserve  it  from 
unexpected  and  unusvial  injury.  For  such  expenses  he  is  entitled  to  compen- 
sation from  the  lender,  who  may,  however,  exonerate  himself  b}'  surrendering 
the  thing  to  the  borrower. 

6893.  Lender  liable  for  defects. 

Sec.  1893.  The  lender  of  a  thing  for  use  must  indemnify  the  borrower  for 
damage  caused  by  defects  or  vices  in  it,  which  he  knew  at  the  time  of  lending, 
and  concealed  from  the  borrower. 

6894.  Lender  may  require  return  of  thing  lent. 

Sec  1894.  The  lender  of  a  thing  for  use  may  at  any  time  require  its  return, 
even  though  he  lent  it  for  a  specified  time  or  purpose.  But  if,  on  the  faith  of 
such  an  agreement,  the  borrower  has  made  such  arrangements  that  a  return 
of  the  thing  before  the  period  agreed  upon  would  cause  him  loss,  exceeding  the 

773 


G891-6914  CIVIL  CODE. 

benefit  derived  l\y  Lim  from  the  loan,  the  lender  must  indemnify  him  for  such 
loss,  if  he  compels  such  return,  the  borrower  not  having  in  any  manner  violated 
his  duty. 

6895.  Wlien  returnahle  witlioul  demand. 

Sec.  1895.  If  a  thing  is  lent  for  use  for  a  sj^ecified  time  or  purpose,  it  must 
be  returned  to  the  lender  without  demand  as  soon  as  the  time  has  expired,  or 
the  purpose  has  been  accomplished.  In  other  cases  it  need  not  be  returned 
until  demanded. 

6896.  Place  of  return. 

Sec.  189C.  The  borrower  of  a  thing  for  use  must  return  it  to  the  lender  at 
the  place  contemi^lated  b}-  the  parties  at  the  time  of  lending;  or  if  no  particular 
place  was  so  contemplated  by  them,  then  at  the  place  where  it  Avas  at  that  time. 

CHAPTEK  II. 

LOAN  FOR  EXCHANGE. 

6902.  Loan  for  exchange,  what. 

Sec.  1902.  A  loan  for  exchange  is  a  conti'act  by  which  one  delivers  personal 
property  to  another,  and  the  latter  agrees  to  return  to  the  lender  a  similar 
thing  at  a  future  time,  without  reward  for  its  use. 

6903.  Same. 

Sec  1903.  A  loan,  which  the  borrower  is  allowed  by  the  lender  to  treat  as  a 
loan  for  use,  or  for  exchange,  at  his  option,  is  subject  to  all  the  provisions  of 
this  chapter. 

6904.  Title  to  property  lent. 

Sec  1904.  By  a  loan  for  exchange  the  title  to  the  thing  lent  is  transferred 
to  the  borrower,  and  he  must  bear  all  its  expenses,  and  is  entitled  to  all  its 
increase. 

6905.  Contract  cannot  he  modifed  by  lender. 

Sec  1905.  A  lender  for  exchange  cannot  require  the  borrower  to  fulfill  his 
obligations  at  a  time,  or  in  a  manner,  different  from  that  which  Avas  originally 
agreed  upon. 

6906.  Certain  nections  applicable. 

Sec.  1906.  Sections  18D3,  1895,  and  189G,  apply  to  a  loan  for  exchange. 

CHAPTER  III. 

LOAN    OF    MONEY. 

6912.  Loan  of  money. 

Sec.  1912.  A  loan  of  money  is  a  contract  by  which  one  delivers  a  sum  of 
money  to  another,  and  the  latter  agrees  to  return  at  a  future  time  a  sum  equiva- 
lent to  that  which  he  borrowed.  A  loan  for  mere  use  is  governed  by  the  chap- 
ter on  loan  for  use. 

6913.  Loan  to  be  repaid  in  current  money. 

Sec.  1913.  A  borrower  of  money,  unless  there  is  an  express  contract  to  the 
contrary,  must  pay  the  amount  due  in  such  money  as  is  current  at  the  time 
when  the  loan  becomes  due,  Avhether  such  money  is  worth  more  or  less  than 
the  actual  money  lent. 

6914.  Loan,  presumed  to  be  on  interest. 

Sec.  1914.  Whenever  a  loan  of  money  is  made,  it  is  presumed  to  be  made  upon 
interest,  unless  it  is  otherwise  expressly  stipulated  at  the  time  in  Avriting. 
[Amendment,  approved  Marcli  30,  1874;  Amendments  1873-4,  244;  took  effect  July 
1,  1874.<'' 

(fi)  Original  section:  without  reward,  but  is  i)rtBume(l  to  bo  made  for  re- 

8ec.  1314.  A  loan  of  money  may  be  made  with  or     ward. 

774 


HIRING.  6915-G925 

6915.  Interest  defined. 

Sec.  1915.  Interest  is  the  compensation  allowed  by  law  or  fixed  by  the  parties 
for  the  use,  or  forbearance,  or  detention  of  money.  [Avwudmod,  approved  March 
30,  1874;  Amendments  1873-4,  245;  took  effect  July  1,  1874."' > 

6916.  Annual  rate. 

Sec.  191  G.  When  a  rate  of  interest  is  prescribed  by  a  law  or  contract,  without 
specifying  the  period  of  time  by  which  such  rate  is  to  be  calculated,  it  is  to  be 
deemed  an  annual  rate. 

6917.  Legal  interest — Computation. 

Sec.  1917.  Unless  there  is  an  express  contract  in  writing-  fixing  a  different 

§  1917.   Change  ''ten,"  in  third  line,  to  "seven."     [In  ef-  '  ten  per  cent,  per  annum, 

feet,  April  16,  1878.]  ^^^^p^  ^  judgment,  and  on 

moneys  lent  or  due  on  any  settlement  of  accounts,  from  the  da}'^  on  which  the 
balance  is  ascertained,  and  on  moneys  received  to  the  use  of  another  and 
detained  from  him.  In  the  computation  of  interest  for  a  period  less  than  a 
year,  three  hundred  and  sixty  days  are  deemed  to  constitute  a  year.  [Amend- 
ment, approved  March  30, 1874;  Aynendmenls'i^l'i-4.,  245;  took  effect  July  1, 1874.*"^ 

6918.  Same. 

Sec.  1918.  Parties  may  agi-ee  in  writing  for  the  payment  of  any  rate  of  interest, 
and  it  shall  be  allowed,  according  to  the  terms  of  the  agreement,  until  the  entry 
of  judgment. 

6919.  Interest  becomes  part  of  principal,  when. 

Sec.  1919.  The  j^arties  may,  in  any  contract  in  writing  whereby  any  debt  is 
secured  to  be  paid,  agree  that  if  the  interest  on  such  debt  is  not  punctually 
paid,  it  shall  become  a  i^art  of  the  principal,  and  thereafter  bear  the  same  rate 
of  interest  as  the  principal  debt. 

6920.  Interest  on  judgment. 

Sec.  1920.  Interest  is  payable  on  judgments  recovered  in  the  courts  of  this 
state,  at  the  rate  of  seven  per  cent,  per  annum,  and  no  greater  rate,  but  such 
interest  must  not  be  comj)ounded  in  any  manner  or  form.  [Amendment,  approved 
March  30,  1874;  Amendments  1873-4,  245;  took  effect  July  1,  1874.'^' 


TITLE  Y. 


Iniino. 


Chapter  I.  Hiring  in  General 6925 

II.  Hiring  of  Real  Property 6941 

III.  Hiring  of  Personal  Property 6955 

CHAPTER  I. 

HIRING  IN   GENERAL. 
6925.  Hiring,  tvhat. 

Sec.  1925.  Hiring  is  a  contract  by  which  one  gives  to  another  the  temporary 
possession  and  use  of  property,  other  than  money,  for  reward,  and  the  latter 
agrees  to  return  the  same  to  the  former  at  a  future  time. 

(a)   Original  Bection:  tereet  for  lesB  than  a  year,  three  hundred  and  sixty  days 

Sec.  1915.  Reward  for  the  loan,  forbearance,  cruse  of  are  deemed  to  ronstitute  a  year. 

money  or  Its  equivalent,  is  called  interest.  (c)   Original  sertion: 

(6)   Original  section:  Seo.  1920.  No  judgment  in  any  court  of  this  state 

Seo.  1917.  Under  an  obligation  to  pay  interest,  no  shall  draw  interest  at  a  rate  to  exceed  seven  per  cent. 

rate  being  specified,  interest  is  payable  at  the  rate  of  per  annum.     Interest  must  not  be  compounded  in  any 

ten  per  cent,  per  annum,  and  in  like  proportion  for  a  manner  or  form  on  a  judgment. 

longer  or  shorter  time ;  but  in  the  computation  of  in- 

775 


6926-G935  CH'IL  CODE. 

6926.  Frodiicfs  of  thing. 

Sec.  1926.  The  products  of  a  thing-  hired,  during  the  hiring,  belong  to  the 
hirer. 

6927.  Quiet  jiossession. 

Sec.  1927.  An  agreement  to  let  upon  hire  binds  the  letter  to  secure  to  the 
hirer  the  quiet  possession  of  the  thing  hired  during  the  term  of  the  hiring, 
against  all  persons  lawfully  claiming  the  same. 

6928.  Degree  of  care,  etc.,  onpaiH  of  hirer. 

Sec.  1928.  The  hirer  of  a  thing  must  use  ordinary  care  for  its  preservation  in 
safety  and  in  good  condition. 

6929.  Mast  repair  injuries,  etc. 

Sec.  1929.  The  hirer  of  a  thing  must  repair  all  deteriorations  or  injuries 
thereto  occasioned  by  his  ordinary  negligence. 

6930.  Thingletforaj)(oiicularj)urpose. 

Sec  1930.  When  a  thing  is  let  for  a  particular  purpose  the  hirer  must  not 
use  it  for  qmj  other  purpose;  and  if  he  does,  the  letter  may  hold  him  respon- 
sible for  its  safety  during  such  use  in  all  events,  or  may  treat  the  contract  as 
thereby  rescinded. 

6931.  When  letter  may  terminate  the  hiring. 

Sec.  1931.  The  letter  of  a  thing  ma}'  terminate  the  hiring  and  reclaim  the 
thing  before  the  end  of  the  term  agreed  uiDon : 

1.  "When  the  hirer  uses  or  permits  a  use  of  the  thing  hired  in  a  manner  con- 
trary to  the  agreement  of  the  parties;  or, 

2.  "When  the  hirer  does  not,  within  a  reasonable  time  after  request,  make 
such  repairs  as  he  is  bound  to  make. 

6932.  When  hirer  may  terminate  the  hiring. 

Sec  1932.  The  hirer  of  a  thing  may  terminate  the  hiring  before  the  end  of  the 
term  agreed  upon: 

1.  "When  the  letter  does  not,  within  a  reasonable  time  after  request,  fulfill 
his  obligations,  if  any,  as  to  j^lacing  and  securing  the  hirer  in  the  quiet  posses- 
sion of  the  thing  hired,  or  putting  it  into  good  condition,  or  repairing;  or, 

2.  "When  the  greater  part  of  the  thing  hired,  or  that  j^art  which  was  and 
which  the  letter  had  at  the  time  of  the  hiring  reason  to  believe  was  the  material 
inducement  to  the  hirer  to  enter  into  the  contract,  perishes  from  any  other 
cause  than  the  ordinary  negligence  of  the  hirer. 

6933.  When  hiring  terminates. 

Sec  1933.  The  hiring  of  a  thing  terminates: 

1.  At  the  end  of  the  tex-m  agreed  upon; 

2.  By  the  mutual  consent  of  the  parties; 

3.  By  the  hirer  acquiring  a  title  to  the  thing  hired  superior  to  that  of  the 
letter;  or, 

4.  By  the  destruction  of  the  thing  hired. 

6934.  Wlien  terminated  by  death,  etc.,  of  partij. 

Sec  1934.  If  the  hiring  of  a  thing  is  terminable  at  the  pleasure  of  one  of 
the  parties,  it  is  terminated  by  notice  to  the  other  of  his  death  or  incapacity  to 
contract.     In  other  cases  it  is  not  terminated  thereby. 

6935.  Apportionment  of  hire. 

Skc  1935.  When  the  hiring  of  a  thing  is  terminated  before  the  time  origi- 
nally agreed  upon,  the  hirer  must  pay  the  due  proportion  of  the  hire  for  such 
use  as  he  has  actually  made  of  the  thing,  unless  such  use  is  merely  nominal, 
and  of  no  benefit  to  him. 

77G 


HIRING.  6941-G947 

CHAPTER  II. 

HIRING  OF   REAL   TROPERTY. 

6941.  Lessor  to  make  dwelling-house  fd  for  its  purpose. 

Seo.  1941.  The  lessor  of  a  building  intended  for  the  occupation  of  human 
beings  must,  in  the  absence  of  an  agreement  to  the  contrary,  put  it  into  a  con- 
dition fit  for  such  occupation,  and  repair  all  subsequent  dilapidations  thereof, 
"which  render  it  untenantable,  except  such  as  are  mentioned  in  section  nineteen 
hundred  and  twenty-nine.  [Amendment,  approved  March  30,1874;  Amendments 
1873-4,  245;  took  effect  July  1,  1874.^"' 

6942.  When  lessee  may  make  repairs,  etc. 

Sec.  1942.  If  within  a  reasonable  time  after  notice  to  the  lessor,  of  dilapida- 
tions which  he  ought  to  repair,  he  neglects  to  do  so,  the  lessee  may  repair  the 
same  himself,  where  the  costs  of  such  repairs  do  not  require  an  expenditure 
greater,  than  one  month's  rent  of  the  premises,  and  deduct  the  expenses  of  such 
repairs  from  the  rent,  or  the  lessee  may  vacate  the  premises,  in  which  case  he 
shall  be  discharged  from  further  payment  of  rent,  or  performance  of  other  con- 
ditions. [Amendment,  ajyproved  Ilarch  SO,  181 4t;  Amendments  ISIS-A,  246;  took 
effect  July  1,  1874.<''^ 

6943.  1'erm  of  hiring  when  no  limit  is  fixed. 

Sec.  1943.  A  hiring  of  real  proj)erty,  other  than  lodgings  and  dwelling-houses, 
in  places  where  there  is  no  usage  on  the  subject,  is  presumed  to  be  for  one  year 
from  its  commencement,  unless  otherwise  expressed  in  the  hiring. 

6944.  Hiring  of  lodgings  for  indefinite  term. 

Sec.  1944.  A  hiring  of  lodgings  or  a  dwelling  house  for  an  unspecified  term 
is  presumed  to  have  been  made  for  such  length  of  time  as  the  parties  adopt  for 
the  estimation  of  the  rent.  Thus  a  hiring  at  a  monthly  rate  of  rent  is  presumed 
to  be  for  one  month.  In  the  absence  of  any  agreement  respecting  the  length 
of  time  or  the  rent,  the  hiring  is  presumed  to  be  monthly. 

6945.  Renewal  of  lease  by  lessee's  continued  possession. 

Sec.  1945.  If  a  lessee  of  real  property  remains  in  possession  thereof  after  the 
expiration  of  the  hiring,  and  the  lessor  accepts  rent  from  him,  the  parties  are 
•presumed  to  have  renewed  the  hiring  on  the  same  terms  and  for  the  same  time, 
not  exceeding  one  month  when  the  rent  is  payable  monthly,  nor  in  any  case  one 
year. 

6946.  Notice  to  quit. 

Sec  1946.  A  hiring  of  real  property,  for  a  term  not  specified  by  the  parties, 
is  deemed  to  be  renewed  as  stated  in  the  last  section,  at  the  end  of  the  term 
implied  by  law,  unless  one  of  the  parties  gives  notice  to  the  other  of  his  inten- 
tion to  terminate  the  same,  at  least  as  long  before  the  expiration  thereof  as  the 
term  of  the  hiring  itself,  not  exceeding  one  month. 

6947.  Bent,  when  payable. 

Sec  1947.  AVhen  there  is  no  usage  or  contract  to  the  contrary,  rents  are  pay- 
able at  the  termination  of  the  holding,  when  it  does  not  exceed  one  year.  If 
the  holding  is  by  the  day,  week,  month,  quarter,  or  year,  rent  is  payable  at  the 
termination  of  the  respective  periods,  as  it  successively  becomes  due. 

(a)  Original  section:  (6)   Original  eertion: 

Sec.  1941.  The  lessor  of  a  building  intended  for  the  Sec.  1'J4'2.  If,  within  a  reaeonable  time  after  notice 

occupatinn  of  human  beings  must  put  it  into  a  condi-  to  the  lessor,  of  dilai^dations  wbicli   he  ought  to  re- 

tion  lit  for  that  inirpose,  and  must  repair  all  subsequent  pair,  bo    neglects   to   do    so,    the    lessee  may   repair 

dilapidations  thereof  except  such  as  are  mentioned  in  the  same  himself,  and  deduct  the  expenses  of  such 

section  19^9.  repairs  from  the  rent,  or  otherwiee  recover  it  trom  the 

lessor. 

777 


6948-G959  CIVIL  CODE. 

6948.  Attornment  of  a  tenant  to  a  i^tranger. 

Sec.  194:8.  The  attornment  of  a  tenant  to  a  stranger  is  Toid,  unless  it  is  made 
with  the  consent  of  the  landlord,  or  in  consequence  of  a  judgment  of  a  coixrt  of 
comjDetent  jurisdiction. 

6949.  Tenant  must  deliver  notice  served  on  Mm. 

Sec.  1949'.  Every  tenant  who  receives  notice  of  any  proceeding  to  recover  the 
real  i^roperty  occupied  by  him,  or  the  possession  thereof,  must  immediately 
inform  his  landlord  of  the  same,  and  also  deliver  to  the  landlord  the  notice,  if 
in  writing,  and  is  responsible  to  the  landlord  for  all  damages  which  he  may 
sustain  by  reason  of  any  omission  to  inform  him  of  the  notice,  or  to  deliver  it 
to  him  if  in  writiug.  [Amendment,  approved  IlarchdO,  1874;  Amendments  1873-4, 
24G;  took  efect  July  1,  1874.^^' 

6950.  Letting  parts  of  rooms  forbidden. 

Sec.  1950.  One  who  hires  part  of  a  room  for  a  dwelling  is  entitled  to  the 
whole  of  the  room,  notwithstanding  any  agreement  to  the  contrary;  and  if  a 
landlord  lets  a  room  as  a  dwelling  for  more  than  one  family,  the  person  to  whom 
he  first  lets  any  part  of  it  is  entitled  to  the  possession  of  the  whole  room  for  the 
term  agreed  ujion,  and  every  tenant  in  the  biiilding,  under  the  same  landlord, 
is  relieved  from  all  obligation  to  pay  rent  to  him  while  such  double  letting  of 
any  room  continues. 

CHAPTEE  III. 

HIRING   OF   PERSONAL   PROPERTY. 

6955.  OhUgafions  of  letter  of  piersonal  property . 

Sec.  1955.  One  who  lets  personal  property  must  deliver  it  to  the  hirer,  secure 
his  quiet  enjoyment  thereof  against  all  lawful  claimants,  put  it  into  a  condition 
fit  for  the  purpose  for  which  he  lets  it,  and  rei:)air  all  deteriorations  thereof  not 
occasioned  by  the  fault  of  the  hirer  and  not  the  natural  result  of  its  use. 

6956.  Ordinary  expenses. 

Sec.  195G.  A  hirer  of  personal  property  must  bear  all  such  expenses  concern- 
ing it  as  might  naturally  be  foreseen  to  attend  it  during  its  use  by  him.  All 
other  expenses  must  be  borne  b}^  the  letter. 

6957.  Extraordinary  expenses. 

Sec  1957.  If  a  letter  fails  to  fulfill  his  obligations,  as  prescribed  by  section 
1955,  the  hirer,  after  giving  him  notice  to  do  so,  if  such  notice  can  conveniently 
be  given,  may  expend  any  reasonable  amount  necessary  to  make  good  the  letter's 
default,  and  may  recover  such  amount  from  him. 

6958.  Return  oftJnng  hired. 

Sec.  1958.  At  the  expiration  of  the  term  for  which  personal  property  is  hired, 
the  hirer  must  return  it  to  the  letter  at  the  place  contemplated  by  the  parties  at 
the  time  of  hiring;  or,  if  no  particular  place  was  so  contemplated  by  them,  at 
the  place  at  which  it  was  at  that  time. 

6959.  Charter  party,  v:hat. 

Sec  1959.  The  contract  by  which  a  ship  is  let  is  termed  a  charter-party.  By 
it  the  owner  may  either  let  the  capacity  or  burden  of  the  shii^,  continuing  the 
employment  of  the  owner's  master,  crew,  and  equipments,  or  may  surrender 
the  entire  ship  to  the  charterer,  who  then  provides  them  himself.  The  master 
or  a  part  owner  may  be  a  charterer. 

(a)  The  original  Bection  couHiBted  of  the  firfit  clause  alone,  down  to  and  including  the  word  "  same." 

778 


SEKVICE.  G965-G976 


TITLE  YI. 

Chapter  I.  Service  with  Employment G9G5 

II.  Particular  Employments 7009 

III,   Service  without  Employment 7078 

CHAPTEE  I. 

SERVICE   WITH   EMPLOYMENT. 

Article      I.  Dkfinition  of  Employment 6965 

II.  Obligations  of  thk  Employeu 6969 

III.  Obligations  of  the  Employee 6975 

IV,  Teemination  of  Employment 699G 

ARTICLE  I, 

definition  of  employment, 
6965.  Employment,  what. 

Sec.  1965,  The  contract  of  emiiloyment  is  a  contract  by  wLicli  one,  who  is 
called  the  employer,  engages  another,  who  is  called  the  employee,  to  do  some- 
thing for  the  benefit  of  the  employer,  or  of  a  third  person, 

ARTICLE  n, 

obligations  of  the  employer. 

6969.  When  employer  must  indemnify  employee. 

Sec  1969,  An  employer  must  indemnify  his  employee,  except  as  prescribed 
in  the  next  section,  for  all  that  he  necessarily  expends  or  loses  in  dii'ect  conse- 
quence of  the  discharge  of  his  duties  as  such,  or  of  his  obedience  to  the  direc- 
tions of  the  employer,  even  though  unlawful,  unless  the  employee,  at  the  time 
of  obeying  such  directions,  believed  them  to  be  unlawful. 

6970.  When  not. 

Sec  1970.  An  employer  is  not  bound  to  indemnify  his  emploj-ee  for  losses 
suffered  by  the  latter  in  consequence  of  the  ordinary  risks  of  the  business  in 
which  he  is  employed,  nor  in  consequence  of  the  negligence  of  another  person, 
employed  by  the  same  employer  in  the  same  general  business,  unless  he  has 
neglected  to  use  ordinary  care  in  the  selection  of  the  culpable  employee. 

6971.  Employer  to  indemnify  for  his  own  negligence. 

Sec  1971,  An  employer  must  in  all  cases  indemnify  his  employee  for  losses 
caused  by  the  former's  want  of  ordinary  care, 

ARTICLE  III, 

obligations  of  the  employee. 

6975,  Duties  of  gratuitous  employee. 

Sec  1975,  One  who,  without  consideration,  undertakes  to  do  a  service  for 
another,  is  not  bound  to  perform  the  same,  but  if  he  actually  enters  upon  its 
performance,  he  must  use  at  least  slight  care  and  diligence  therein. 

6976.  ^a?7ie. 

Sec  1976.  One  who,  by  his  own  special  request,  induces  another  to  intrust 
him  with  the  performance  of  a  service,  must  perform  the  same  fully.  In  other 
cases,  one  w^ho  undertakes  a  gratuitous  service  may  relinquish  it  at  any  time, 

779 


6977-G9SG  CR^IL  CODE. 

6977.  Same. 

Sec.  1977.  A  gratuitous  employee,  who  accepts  a  written  power  of  attorney, 
must  act  under  it  so  long  as  it  remains  in  force,  or  until  he  gives  notice  to  his 
employer  that  he  will  not  do  so, 

6978.  Duties  of  employee  for  reward. 

Sec.  1978.  One  who,  for  a  good  consideration,  agrees  to  serve  another,  must 
perform  the  service,  and  must  use  ordinary  care  and  diligence  therein,  so  long 
as  he  is  thus  employed. 

6979.  Duties  of  employee  for  Im  oicn  benefit. 

Sfx.  1979.  One  who  is  employed  at  his  own  request  to  do  that  which  is  more 
for  his  own  advantage  than  for  that  of  his  employer,  must  use  great  care  and 
diligence  therein  to  protect  the  interest  of  the  latter. 

6980.  Contracts  for  service  limited  to  tivo  years. 

Skc.  1980.  A  contract  to  render  personal  sei-vice,  other  than  a  contract  of 
apprenticeship,  as  provided  in  the  chapter  on  master  and  servant,  cannot  be 
enforced  against  the  employee  beyond  the  term  of  two  years  from  the  commence- 
ment of  service  under  it;,  but  if  the  employee  voluntarily  continues  his  service 
under  it  beyond  that  time,  the  contract  may  be  referred  to  as  affording  a  pre- 
sumptive measure  of  the  compensation. 

6981.  Employee,  duty  of. 

Sec.  1981.  An  emjoloyee  must  substantially  comply  with  all  the  directions  of 
his  employer  concerning  the  service  on  which  he  is  engaged,  except  where  such 
obedience  is  impossible  or  unlawful,  or  would  impose  new  and  unreasonable 
biu'dens  upon  the  employee.  [Amendment,  approved  March  30,  1874;  Amend- 
ments 1873-4,  246;  took  effect  July  1,  1874.'"^ 

6982.  Employee  to  conform  to  usage. 

Sec  1982.  An  employee  must  perform  his  sei^ice  in  conformity  to  the  usage 
of  the  place  of  performance,  unless  otherwise  directed  by  his  employer,  or 
unless  it  is  impracticable,  or  manifestly  injurious  to  his  employer  to  do  so. 

6983.  Degree  of  skill  required. 

Sec.  1983.  An  employee  is  bound  to  exercise  a  reasonable  degree  of  skill, 
unless  his  employer  has  notice,  before  employing  him,  of  his  want  of  skill. 

6984.  Must  use  skill. 

Sec.  1984.  An  employee  is  always  bound  to  use  such  skill  as  he  jDossesses,  so 
far  as  the  same  is  required,  for  the  service  specified.  [Amendment,  approved 
March  30,  1874;  Amendments  1873-^,  247;  took  efj'ect  July  1,  1874."" 

6985.  WJiut  belongs  to  employer. 

Sec.  1985.  Everything  which  an  employee  acquires  by  virtue  of  his  emploj'- 
ment,  except  the  compensation,  if  any,  which  is  due  to  him  from  his  employer, 
belongs  to  the  latter,  whether  acquired  lawfully  or  unlawfully,  or  during  or 
after  the  expiration  of  the  term  of  his  emploj'ment. 

6986.  Duly  to  account. 

Sec.  198G.  An  employee  must,  on  demand,  render  to  his  employer  just 
accounts  of  all  his  transactions  in  the  course  of  his  service,  as  often  as  may  be 

(a)  Ori^nal  section:  cousulted,  and  in  which  non-compliance  is  judged  by 

Heo   I'JHl.  An  cinployt'e  muKt  BnbHtantinlly  comply  the  employee  in  good  faith,  and  in  the  exercise  of  rea- 

■with  oil  the  directions  of  his  employer  c<jui-erniiig  the  eouable  discretion,  to  be  absolutely  necessary  lor  the 

Bervlce  ou  which  he  is  engaged,  even  though  contrary  protection  of  the  employer's  interests.     In  all  such 

to  the  provisions  of  this  title,  except  wliere  sucli  obe-  cases  the  employee  must  conform  as  nearly  to  the  di- 

dience  is  impossible  or  unlawful,  or  would  impose  new  rections  of  his  employer  as  may  be  reasonably  prac- 

and  unreasonable  burdens  upon  the  employee,  or  in  ticable,  and  most  for  the  interest  of  the  latter, 

case  of  an  emergency  which,  according  to  the  best  in-  (b)  The  original  section  did   not   have   the  words, 

formation  wliicU  the  employee  can  with  reasonable  "  so  far  as  the  same  is  reriuired,  for  the  service  speci- 

dlUgence  <jl)tain,  the  employer  did  not  contemplate,  fled." 
In  which  he  cannot,  with  reaeonable  diligence,  be 

780 


SEEVICE.  698G-G998 

reasonable,  and  mnst,  witliont  demand,  give  prompt  notice  to  his  employer  of 
everything  which  he  receives  for  his  account. 

6987.  Employee  not  hovnd  to  deliver  xdthout  demand. 

Sec.  1987.  An  employee  who  receives  anything  on  account  of  his  employer, 
in  any  capacity  other  than  that  of  a  mere  servant,  is  not  bound  to  deliver  it  to 
him  until  demanded,  and  is  not  at  liberty  to  send  it  to  him  from  a  distance, 
without  demand,  in  any  mode  involving  greater  risk  than  its  retention  by  the 
emjiloyee  himself. 

6988.  Preference  to  employer's  interests. 

Sec.  1988.  An  employee  who  has  any  business  to  transact  on  his  own  account, 
similar  to  that  intrusted  to  him  by  his  employer,  must  always  give  the  latter 
the  preference.  [Ameiidment,  approved  Ilarxh  30,  1874;  Amendments  1873-4, 
247;  took  effect  July  1,  1874.^"^ 

6989.  Responsibility  of  employee  for  substitute. 

Sec.  1989.  An  employee  who  is  expressly  authorized  to  employ  a  substitute 
is  liable  to  his  principal  only  for  want  of  ordinary  care  in  his  selection.  The 
substitute  is  directly  resjponsible  to  the  principal. 

6990.  Responsibility  for  negligence. 

Sec.  1990.  An  employee  who  is  guilty  of  a  culpable  degi-ee  of  negligence  is 
liable  to  his  employer  for  the  damage  thereby  caused  to  the  latter;  and  the  em- 
ployer is  liable  to  him,  if  the  service  is  not  gratuitous,  for  the  value  of  such 
services  only  as  are  properly  rendered.  « 

6991.  Surviving  employee. 

Sec  1991.  "Where  service  is  to  be  rendered  by  two  or  more  persons  jointly, 
and  one  of  them  dies,  the  survivor  must  act  alone,  if  the  service  to  be  rendered 
is  svich  as  he  can  rightly  perform  without  the  aid  of  the  deceased  person,  but 
not  otherwise. 

6992.  Confidential  employment. 

Sec.  1992.  The  obligations  peculiar  to  confidential  employments  are  defined 
in  the  title  on  trusts. 

AKTICLE  IV. 

TERMINATION    OF    EMPLOYMENT. 

6996,  Termination  by  death,  etc. ,  of  employer. 

Sec  1996.  Every  employment  in  which  the  power  of  the  employee  is  not 
coupled  with  an  interest  in  its  subject  is  terminated  by  notice  to  him  of: 

1.  The  death  of  the  employer;  or, 

2.  His  legal  incapacity  to  contract. 

6997,  Employment,  hoiv  terminated. 

Sec  1997.  Eveiy  employment  is  terminated: 

1.  By  the  expiration  of  its  appointed  term; 

2.  By  the  extinction  of  its  subject; 

3.  By  the  death  of  the  employee;  or, 

4.  By  his  legal  incapacity  to  act  as  such. 

6998,  Continuance  of  service  in  certain  cases. 

Sec  1998.  An  employee,  unless  the  term  of  his  service  has  expired,  or  unless 
he  has  a  right  to  discontinue  it  at  any  time  without  notice,  must  continue  his 
service  after  notice  of  the  death  or  incapacity  of  his  employer,  so  far  as  is 
necessary  to  protect  from  serious  injury  the  interests  of  the  employer's  successor 

(a)  The  original  section  had  an  additional  sentence  their  relative  urgency,  or,  other  things  being  equal, 

as  follows:  according  to  the  order  In  which  they  were  committed 

"If  intrusted  with  similar  affairs  by  different  em-  to  him," 
ployers,  he  must  give  them  preference  according  to 

781 


6998-7011  CIVIL  CODE. 

in  interest,  until  a  reasonable  time  after  notice  of  the  facts  has  been  commu- 
nicated to  such  successor.  The  successor  must  compensate  the  employee  for 
such  sen'ice  according  to  the  terms  of  the  contract  of  employment. 

6999.  Termiimtion  at  ivill. 

Sec.  1999.  An  employment  having  no  specified  tenn  may  be  terminated  at 
the  will  of  either  party,  on  notice  to  the  other,  except  where  otherwise  provided 
by  this  title. 

7000.  Termination  by  employer  for  fault. 

Sec.  2000.  An  employment,  even  for  a  specified  term,  may  be  terminated  at 
any  time  by  the  employer,  in  case  of  any  willful'  breach  of  duty  by  the  em- 
ployee in  the  course  of  his  employment,  or  in  case  of  his  habitual  neglect  of  his 
duty  or  continued  incapacity  to  perform  it. 

7001.  Termination  by  employee  for  fault. 

Sec.  2001.  An  employment,  even  for  a  specified  term,  may  be  terminated  by 
the  employee  at  any  time,  in  case  of  any  willful  or  permanent  breach  of  the 
obligations  of  his  employer  to  him  as  an  employee. 

7002.  Compensation  of  employee  dismissed  for  cause. 

Sec  2002.  An  employee,  dismissed  by  his  employer  for  good  cause,  is  not 
entitled  to  any  compensation  for  services  rendered  since  the  last  day  upon 
which  a  payment  became  due  to  him  under  the  contract. 

7003.  Compensation  of  employee  leaving  for  cause. 

Sec.  2003.  An  employee  who  quits  the  service  of  hisemplo^'er  for  good  cause 
is  entitled  to  such  proportion  of  the  compensation  which  would  become  due  in 
case  of  full  performance  as  the  services  which  he  has  already  I'endered  bear  to 
the  services  which  he  was  to  render  as  full  performance. 

CHAPTER    II.       . 

PABTICULAR  EMPLOYMENTS. 

Article   I.  Mastkr  and  Servant 7009 

ir.  Agknts 7019 

III.  Factors 70'2G 

IV.  Shipmastkrs 7034 

V.  Matks  and  Seamen 7048 

VI.  Ships'  Managers 7070 

AETICLE  I. 

MASTER    AND    SERVANT. 

7009.  Serrant,  ichaf. 

Sec.  2009.  A  servant  is  one  who  is  employed  to  render  personal  service  to 
his  employer,  otherwise  than  in  the  pursuit  of  an  independent  calling,  and  who 
in  such  service  remains  entirely  under  the  control  and  direction  of  the  latter, 
who  is  called  his  master. 

7010.  Term  cf  hiring. 

Sec  2010.  A  servant  is  presumed  to  have  been  hired  for  such  length  of  time 
as  the  parties  adopt  for  the  estimation  of  wages.  A  hiring  at  a  yearly  rate  is 
presumed  to  be  for  one  year;  a  hiring  at  a  daily  rate,  for  one  day;  a  hiring  by 
pi('<;e  work,  for  no  specified  term. 

7011.  Same. 

Sec  2011.  In  the  absence  of  any  agreement  or  custom  as  to  the  term  of  ser- 
vice, tlie  time  of  payment,  or  rate  or  value  of  wages,  a  servant  is  presumed 
to  be  hired  by  the  montli,  at  a  monthly  rate  of  reasonable  wages,  to  be  paid 
when  the  sen'ice  is  performed. 

782 


SERVICE,  7012-7027 

7012.  Benewal  of  hiring. 

Sec.  2012.  Where,  after  the  expiration  of  an  agreement  respecting  the  Avages 
and  the  term  of  service,  the  j)arties  continue  the  rehition  of  master  and  servant, 
they  are  presumed  to  have  renewed  the  agreement  for  the  same  wages  and  term 
of  service, 

7013.  Time  of  service. 

Sec.  2013,  The  entire  time  of  a  domestic  servant  belongs  to  the  master;  and 
the  time  of  other  servants  to  such  an  extent  is  usual  in  the  business  in  which 
they  serve,  not  exceeding  in  any  case  ten  hours  in  the  day. 

7014,  Servant  to  pay  over  without  demand. 

Sec.  2014,  A  servant  must  deliver  to  his  master,  as  soon  as  with  reasonable 
diligence  he  can  find  him,  everything  that  he  receives  for  his  account,  without 
demand;  but  he  is  not  bound,  without  orders  from  his  master,  to  send  anything 
to  him  through  another  person. 

7015,  When  servant  may  he  discharged. 

Sec,  2015.  A  master  may  discharge  any  servant,  other  than  an  apprentice, 
whether  engaged  for  a  fixed  term  or  not : 

1.  If  he  is  guilty  of  misconduct  in  the  course  of  his  service,  or  of  gross  immo- 
rality, though  unconnected  with  the  same;  or, 

2.  If,  being  employed  about  the  person  of  the  master,  or  in  a  confidential 
position,  the  master  discovers  that  he  has  been  guilty  of  misconduct,  before  or 
after  the  commencement  of  his  service,  of  such  a  nature  that,  if  the  master  had 
known  or  contemplated  it,  he  would  not  have  so  employed  him. 

ARTICLE  II. 

AGENTS, 

7019,  Agent  to  conform  to  his  authority. 

Sec.  2019.  An  agent  must  not  exceed  the  limits  of  his  actual  authority,  as 
defined  by  the  title  on  agency. 

7020,  Must  keep  his  principal  informed. 

Sec.  2020.  An  agent  must  use  ordinary  diligence  to  keej^  his  principal  in- 
formed of  his  acts  in  the  course  of  the  agency, 

7021,  Collecting  agent. 

Sec.  2021,  An  agent  employed  to  collect  a  negotiable  instrument  must  collect 
it  promptly,  and  take  all  measures  necessary  to  charge  the  parties  thereto,  in 
case  of  its  dishonor;  and,  if  it  is  a  bill  of  exchange,  must  present  it  for  accept- 
ance with  reasonable  diligence. 

7022,  Responsibility  of  sub-agent. 

Sec.  2022.  A  mere  agent  of  an  agent  is  not  responsible  as  such  to  the  prin- 
cipal of  the  latter. 

ARTICLE  III. 

FACTORS. 

7026,  Factor,  what. 

Sec.  202G.  A  factor  is  an  agent  who,  in  the  pursuit  of  an  independent  calling, 
is  emj^loyed  by  another  to  sell  property  for  him,  and  is  vested  by  the  latter 
with  the  possession  or  control  of  the  property,  or  authorized  to  receive  payment 
therefor  from  the  purchaser. 

7027.  Obedience  required  from  factor. 

Sec,  2027.  A  factor  must  obey  the  instructions  of  his  princiijal  to  the  same 
extent  as  any  other  employee,  notwithstanding  any  advances  he  may  have  made 
to  his  principal  upon  the  property  consigned  to  him,  exce^it  that  if  the  j^rincipal 

78a 


7027-7041  CIVIL  CODE. 

forbids  him  to  sell  at  the  market  price,  he  may,  nevertheless,  sell  for  his  reim- 
bursement, after  giving  to  his  jorincipal  reasonable  notice  of  his  intention  to  do 
so,  and  of  the  time  and  place  of  sale,  and  proceeding  in  all  respects  as  a 
pledgee. 

7028.  Sales  on  credit. 

Sec.  2028.  A  factor  may  sell  property  consigned  to  him  on  such  credit  as  is 
usual;  but,  having  once  agreed  with  the  purchaser  upon  the  term  of  credit,  may 
not  extend  it. 

7029.  Liabilitij  of  factor  under  guaranty  co7nmission. 

'Sec.  2029.  A  factor  who  charges  his  principal  with  a  guaranty  commission 
upon  a  sale,  thereby  assumes  absolutely  to  pay  the  price  when  it  falls  due,  as  if 
it  were  a  debt  of  his  own,  and  not  as  a  mere  guarantor  for  the  purchaser;  but 
he  does  not  thereby  assume  any  additional  responsibility  for  the  safety  of  his 
remittance  of  the  proceeds. 

7030.  Factor  cannot  relieve  himself  from  liability. 

Sec.  2030.  A  factor  who  receives  property  for  sale,  under  a  general  agreement 
or  usage  to  giiarantee  the  sales  or  the  remittance  of  the  proceeds,  cannot 
relieve  himself  from  responsibility  therefor  without  the  consent  of  his  principal. 

ARTICLE  IV. 

SHIPMASTERS. 

7034.  Appointment  of  master. 

Sec.  2034.  The  master  of  a  ship  is  ai^pointed  by  the  owner,  and  holds  during 
his  pleasure. 

7035.  When  must  be  on  board. 

Sec.  2035.  The  master  of  a  ship  is  bound  to  be  always  on  board  when  enter- 
ing or  leaving  a  port,  harbor  or  river. 

7036.  Pilotage. 

Sec.  2036.  On  entering  or  leaving  a  port,  harbor. or  river,  the  master  of  a  ship 
must  take  a  pilot  if  one  offers  himself,  and  while  the  pilot  is  on  board  the  navi- 
gation of  the  ship  devolves  on  him. 

7037.  Power  of  master  over  seamen. 

Sec.  2037.  The  master  of  a  ship  may  enforce  the  obedience  of  the  mate  and 
seamen  to  his  lawful  commands  by  confinement  and  other  reasonable  corporal 
punishment,  not  prohibited  by  acts  of  congress,  being  responsible  for  the  abuse 
of  his  power. 

7038.  Power  of  master  ox'er  lyn^^^engers. 

Sec.  2038.  The  master  of  a  ship  may  confine  any  person  on  board,  during  a 
voyage,  for  willful  disobedience  to  his  lawful  commands. 

7039.  Impressing  private  stores. 

Sec.  2039.  If,  during  a  voyage,  the  ship's  supplies  fail,  the  master,  with  the 
advice  of  the  officers,  may  compel  persons  who  have  private  sujiplies  on  board 
to  surrender  them  for  the  common  want,  on  payment  of  their  value,  or  giving 
secui'ity  therefor, 

7040.  When  may  atjandon  the  ship. 

Sec.  2040.  The  master  of  a  ship  must  not  abandon  it  during  the  voyage,  with- 
out the  advice  of  the  other  officers. 

7041.  Duties  on  ubaudonmenl. 

Sec.  204L  The  master  of  a  ship,  upon  al)andoning  it,  must  carry  with  him, 
so  far  as  it  is  in  his  power,  the  money  and  the  most  valuable  of  the  goods  on 
board,  under  penalty  of  being  personally  responsible.  If  the  articles  thus 
taken  are  lost  from  causes  beyond  his  control,  he  is  exonerated  from  liability. 

784 


SERVICE.  7042-7055 

7042.  Wheyi  master  cannot  trade  on  Ms  own  account. 

Sec.  2042.  The  master  of  a  ship,  who  engages  for  a  common  profit  on  the 
cargo,  must  not  trade  on  his  own  account,  and  if  he  does,  he  must  account  to 
his  employer  for  all  jirofits  thus  made  by  him. 

7043.  Care  and  diligence. 

Sec.  2043.  The  master  of  a  ship  must  use  great  care  and  diligence  in  the  per- 
formance of  his  duties,  and  is  responsible  for  all  damage  occasioned  by  his  neg- 
ligence, however  slight. 

7044.  Authority  of  master. 

Sec.  2044.  The  authority  and  liability  of  the  master  of  a  ship,  as  an  agent 
for  the  owners  of  the  ship  and  cargo,  are  regulated  by  the  title  on  agency. 

ARTICLE  V. 

MATES   AND    SEAMEN. 

7048.  Mate,  ivhat. 

Sec.  2048.  The  mate  of  a  ship  is  the  officer  next  in  rank  to  the  master,  and 
in  case  of  the  master's  disability  he  must  take  his  place.  By  so  doing  he  does 
not  lose  any  of  his  rights  as  mate. 

7049.  Seamen,  what. 

Sec.  2049.  All  persons  employed  in  the  navigation  of  a  shij),  or  upon  a  voy- 
age, other  than  the  master  and  mate,  are  to  be  deemed  seamen  within  the  pro- 
visions of  this  code. 

7050.  3Iate  and  seamen,  hoiv  engaged  and  discharged. 

Sec.  2050.  The  mate  and  seamen  of  a  ship  are  engaged  by  the  master,  and 
may  be  discharged  by  him  at  any  j)eriod  of  the  voyage,  for  willful  and  j^ersist- 
ent  disobedience  or  gross  disqualification,  but  cannot  otherwise  be  discharged 
before  the  termination  of  the  voyage. 

7051.  Unseaworthy  vessel. 

Sec.  2051.  A  mate  or  seaman  is  not  bound  to  go  to  sea  in  a  ship  that  is  not 
seaworthy;  and  if  there  is  reasonable  doubt  of  its  seaworthiness,  he  may  refuse 
to  proceed  until  a  proper  survey  has  been  had. 

7052 .  Seamen  not  to  lose  wages  or  lien  by  agreement. 

Sec  2052.  A  seaman  cannot,  by  reason  of  any  agreement,  be  deprived  of  his 
lien  upon  the  ship,  or  of  any  remedy  for  the  recovery  of  his  wages  to  w'hich  he 
would  otherwise  have  been  entitled.  Any  stipulation  by  which  he  consents  to 
abandon  his  right  to  wages  in  case  of  the  loss  of  the  ship,  or  to  abandon  any 
right  he  may  have  or  obtain  in  the  nature  of  salvage,  is  void. 

7053.  Special  agreement  with  seamen. 

Sec.  2053.  No  special  agreement  entered  into  by  a  seaman  can  impair  any  of 
his  rights,  or  add  to  any  of  his  obligations,  as  defined  by  law,  unless  he  fully 
understands  the  effect  of  the  agreement,  and  receives  a  fair  compensation 
therefor. 

7054.  Wages  depend  on  freightage. 

Sec.  2054.*  Except  as  hereinafter  provided,  the  wages  of  seamen  are  due 
when,  and  so  far  only  as,  freightage  is  earned,  unless  the  loss  of  freightage  is 
owing  to  the  fault  of  the  owner  or  master. 

7055.  When  wages,  etc.,  begin. 

Sec  2055.  The  right  of  a  mate  or  seaman  to  wages  and  provisions  begins 
either  from  the  time  he  begins  work,  or  from  the  time  specified  in  the  agree- 
ment for  his  beginning  work,  or  from  his  presence  on  board,  whichever  first 
happens. 

50  785 


7056-7070-  CIVIL  CODE. 

7056.  Wages,  xchere  voyage  is  broken  up  before  departure. 

Sec.  205G.  "Where  a  voyage  is  "broken  up  before  departure  of  tlie  sliii^,  the 
seameu  must  be  paid  for  the  time  they  have  served,  and  may  retain  for  their 
iudomuity  such  advances  as  they  have  received. 

7057.  Wrongful  discharge. 

Sec.  2057.  When  a  mate  or  seaman  is  wrongfully  discharged,  or  is  driven  to 
leave  the  ship  by  the  cruelty  of  the  master  on  the  voyage,  it  is  then  ended  with 
resjiect  to  him,  and  he  may  thereupon  recover  his  full  wages. 

7058.  Wages,  v:hen  not  lost  by  ivreck. 

Skc.  2058.  In  case  of  loss  or  wreck  of  the  ship,  a  seaman  is  entitled  to  his 
wages  up  to  the  time  of  the  loss  or  wreck,  whether  freightage  has  been  earned 
or  not,  if  he  exerts  himself  to  the  utmost  to  save  the  ship,  cargo,  and  stores. 

7059.  Certificate. 

Sec.  2059.  A  certificate  from  the  master  or  chief  surviving  officer  of  a  ship, 
to  the  effect  that  a  seaman  exerted  himself  to  the  utmost  to  save  the  ship,  cargo 
and  stores,  is  presumptive  evidence  of  the  fact. 

7060.  Disabled  seamen. 

Sec.  2060.  "VMiere  a  mate  or  seaman  is  prevented  from  rendering  service  by 
illness  or  injur}',  incurred  without  his  fault  in  the  discharge  of  his  duty  on  the 
voyage,  or  by  being  wrongfully  discharged,  or  by  a  capture  of  the  ship,  he  is 
entitled  to  wages  notwithstanding;  but  in  case  of  a  capture,  a  ratable  deduction 
for  salvage  is  to  be  made. 

7061.  Maintenance  of  seamen  during  sickness. 

Sec.  2061.  If  a  mate  or  seaman  becomes  sick  or  disabled  during  the  voyage, 
without  his  fault,  the  expense  of  furnishing  him  with  suitable  medical  advice, 
medicine,  attendance,  and  other  provision  for  his  wants,  must  be  borne  by  the 
ship  till  the  close  of  the  voyage. 

7062.  iJealh  on  the  voyage. 

Sec.  2062,  If  a  mate  or  seaman  dies  during  the  voyage,  his  personal  repre- 
sentatives are  entitled  to  his  wages  to  the  time  of  his  death,  if  he  would  have 
been  entitled  to  them  had  he  lived  to  the  end  of  the  voyage. 

7063.  Theft,  etc.,  forfeits  wages. 

Sec.  2063.  Desertion  of  the  ship  without  cause,  or  a  justifiable  discharge  by 
the  master  during  the  voyage,  for  misconduct,  or  a  theft  of  any  part  of  the  cargo 
or  ai:)purtenauces  of  the  ship,  or  a  willful  injury  thereto  or  to  the  ship,  forfeits 
all  wages  due  for  the  voyage  to  a  mate  or  seaman  thus  in  fault. 

7064.  Seamen  cannot  ship  goods. 

Sec  2064.  A  mate  or  seaman  may  not,  under  any  pretext,  ship  goods  on  his 
own  account  without  permission  from  the  master. 

7065.  [Sec  2065""  was  repealed  by  act  approved  March  30, 1874;  Amendments 
1873-4,  247;  took  effect  July  1,  1874.] 

7066.  Law  governing  seamen. 

Sec  2066.  The  shipment  of  officers  and  seamen,  and  their  rights  and  duties, 
are  further  regulated  by  acts  of  congress.  ^ 

ARTICLE  VI. 

ship's  managers. 
7070.   Manager,  v:hal. 

Sec  2070.  The  general  agent  fur  the  owners,  in  respect  to  the  care  of  a  ship 

(a)  Rcpfalcd  Bcction:  man,  the  oflfcntler,  or,  if  it  iH  not  known  which  is  the 

Sbc.  "i!!)'..').  If  any  part  of  the  cargo  or  appurt(!nnnr,es     offender,  aU  tliosc  of  whom  negligence  or  fault  may  be 
of  a  Bhip  iB  embezzled  or  injured  by  the  mate  cr  a  sea-     presumed,  must  make  good  the  loss. 

780 


CARRIAGE.  7070-7085 

and  freight,  is  called  the  manager.     If  lie  is  a  part  owner,  he  is  also  called  the 
managing  owner. 

7071.  Duties  of  manager. 

Sec.  2071.  Unless  otherwise  directed,  it  is  the  duty  of  the  manager  of  a  ship 
to  provide  for  the  complete  seaworthiness  of  a  shiji;  to  take  care  of  it  in  port; 
to  see  that  it  is  provided  with  necessary  papers,  with  a  proper  master,  mate,  and 
crew,  and  supplies  of  provisions  and  stores. 

7072.  Compensation, 

Sec.  2072.  A  managing  owner  is  presumed  to  have  no  right  to  compensation 
for  his  own  services. 

CHAPTER  III. 

SEEVICE   WITHOUT  EMPLOYMENT. 

7078.  Voluntary  interference  ivith  property. 

Sec.  2078.  One  who  officiously,  and  without  the  consent  of  the  real  or  ap- 
parent owner  of  a  thing,  takes  it  into  his  possession  for  the  purpose  of  rendering 
a  service  about  it,  must  complete  such  service,  and  use  ordinary  care,  diligence, 
and  reasonable  skill  about  the  same.  He  is  not  entitled  to  any  compensation 
for  his  service  or  expenses,  except  that  he  may  deduct  actual  and  necessary 
expenses  incurred  by  him  about  such  service  from  any  profits  which  his  service 
has  caused  the  thing  to  acquire  for  its  owner,  and  must  account  to  the  owner 
for  the  residue. 

7079.  Salvage. 

Sec  2079.  Any  person,  other  than  the  master,  mate,  or  a  seaman  thereof, 
who  rescues  a  ship,  her  appurtenances  or  cargo,  from  danger,  is  entitled  to  a 
reasonable  compensation  therefor,  to  be  paid  out  of  the  property  saved.  He 
has  a  lien  for  such  claim,  which  is  regulated  by  the  title  on  liens;  but  no  claim 
for  salvage,  as  such,  can  accrue  against  any  vessel,  or  her  freight,  or  cargo,  in 
favor  of  the  owners,  officers,  or  crew  of  another  vessel  belonging  to  the  same 
owners;  but  the  actual  cost  at  the  time  of  the  services  rendered  by  one  such 
vessel  to  another,  when  in  distress,  are  payable  through  a  general  average  con- 
tribution on  the  jDroperty  saved.  [Amendment,  approved  March  30,  1874; 
Amendments  1873-4,  247;  took  effect  July  1,  1874.'"^ 


TITLE    YII. 

Chapter  I.  Carriage  in  General 7085 

II.  Carriage  of  Persons 709G 

III.  Carriage  of  Property 7110 

IV.  Carriage  of  Messages 7161 

V.  Common  Carriers 71G8 

CHAPTER  I. 

CAKKIAGE  IN   GENERAL. 

7085.   Contract  of  carriage. 

Sec  2085.  The  contract  of  carriage  is  a  contract  for  the  conveyance  of  prop- 
erty, persons,  or  messages,  from  one  place  to  another. 

(a)  The  original  section  did  not  have  any  portion  of  the  latter  part  of  the  above  amendment,  commencing 
with  the  words  "  but  no  claim  for  Balvage." 

787 


7086-7104  CIVIL  CODE. 

7086.  Different  kinds  of  carriers. 
Sec.  208G.  Carriage  is  either: 

1.  Inland;  or, 

2.  Marine. 

7087.  Marine  and  inland  cari^iers,  what. 

Sec.  2U87.  Carriers  upon  the  ocean  and  u^^on  arms  of  the  sea  are  marine  car- 
riers.    All  others  are  inland  carriers. 

7088.  Carriers  by  sea. 

Sec.  2U88.  Eights  and  duties  peculiar  to  carriers  by  sea  are  defined  by  acts 
of  congress. 

7089.  Obligalions  of  gratuiioits  carriers. 

Sec  2089.  Carriers  without  reward  are  subject  to  the  same  rules  as  employees 
without  reward,  except  so  far  as  is  otherwise  provided  by  this  title. 

7090.  Obligations  of  gratuitous  carrier  u-ho  has  begun  to  carinj. 

Sec  2090.  A  carrier  without  reward,  who  has  begun  to  perform  his  under- 
taking, must  complete  it  in  like  manner  as  if  he  had  received  a  reward,  unless 
he  restores  the  person  or  thing  carried  to  as  favorable  a  position  as  before  he 
commenced  the  carriage. 

CHAPTEK   II. 

CARRIAGE   OF   PERSONS. 

Abticle  I.  Geatditous  Caeeiage 7096 

II.  Caeeiage  foe  Kewaed 7100 

AETICLE  I. 

GRATUITOUS  CAEEIAGE  OF  PERSONS. 

7096.  Degree  of  care  required. 

Sec  2096.  A  carrier  of  persons  without  reward  must  use  ordinary  care  and 
diligence  for  their  safe  carnage, 

AETICLE  11. 

carriage  for  reward. 

7100.  General  duties  of  carrier. 

Sec  2100.  A  earner  of  persons  for  reward  must  use  the  utmost  care  and 
diligence  for  their  safe  carriage,  must  provide  everything  necessary  for  that 
purjiose,  and  must  exercise  to  that  end  a  reasonable  degree  of  skill. 

7101.  Vehicles. 

Sec  2101.  A  carrier  of  persons  for  reward  is  bound  to  provide  vehicles  safe 
and  fit  for  the  purposes  to  which  they  are  put,  and  is  not  excused  for  default 
in  this  respect  by  any  degree  of  care. 

7102.  l^ot  to  ovrrload  his  veJdcle. 

Sec  2102.  A  carrier  of  persons  for  reward  must  not  overcrowd  or  overload 
his  vehicle. 

7103.  Treatment  of  passengers. 

Sec  2103.  A  canier  of  persons  for  reward  must  give  to  passengers  all  such 
accommodations  as  are  usual  and  reasonable,  and  must  treat  them  with  civility, 
and  give  them  a  reasonable  degree  of  attention. 

7104.  Rate  of  speed  and  delays. 

Sec  2104.  A  carrier  of  joersons  for  reward  nii:st  travel  at  a  reasonable  rate 
of  speed,  and  without  any  unreasonable  delay,  or  deviation  from  his  proj^er 
route. 

788 


CARRIAGE.  7110-7119 

CHAPTER  III. 

CARRIAGE   OF   PROPERTY. 

Article  I    Genkral  Definitions 7110 

II.  Obligations  of  tuk  Carrier 7111 

III.  Bill  of  Lading 7120 

IV.  Freightage 713i; 

V.  General  Average 7148 

ARTICLE  I. 

GENEKAL    DEFINITIONS. 

7110.  Freight,  consignor,  etc.,  wJiai. 

Sec.  2110.  Property  carried  is  called  fi-eigLt;  the  reward,  if  any,  to  be  paid 
for  its  carriage  is  called  freightage;  the  person  who  delivers  the  freight  to  tlie 
carrier  is  called  the  consignor;  and  the  person  to  whom  it  is  to  be  delivered  is 
called  the  consignee. 

ARTICLE  II. 

OBLIGATIONS    OF    THE    CABRIER. 

7114.  Care  and  diligence  required  of  carriers. 

Sec.  2114.  A  carrier  of  property  for  reward  must  use  at  least  ordinary  care 
and  diligence  in  the  performance  of  all  his  duties.  A  carrier  without  reward 
must  use  at  least  slight  care  and  diligence. 

7115.  Carrier  to  obey  directions. 

Seo.  2115.  A  carrier  must  comply  with  the  directions  of  the  consignor  or  con- 
signee to  the  same  extent  that  an  employee  is  bound  to  comply  with  those  of 
his  employer. 

7116.  Confiict  of  orders. 

Sec  2116.  When  the  directions  of  a  consignor  and  consignee  are  conflicting, 
the  carrier  must  comply  with  those  of  the  consignor  in  respect  to  all  matters 
except  the  delivery  of  the  freight,  as  to  which  he  must  comj^ly  with  the  direc- 
tions of  the  consignee,  unless  the  consignor  has  specially  forbidden  the  carrier 
to  receive  orders  from  the  consignee  inconsistent  with  his  own. 

7117.  Stowage,  deviation,  etc. 

Sec.  2117.  A  marine  carrier  must  not  stow  freight  upon  deck  during  the 
voyage,  except  where  it  is  usual  to  do  so,  nor  make  any  improper  deviation  from 
or  delay  in  the  voyage,  nor  do  an}^  other  unnecessary  act  which  would  avoid  an 
insurance  in  the  usual  form  upon  the  freight. 

7118.  Delivery  of  freight. 

Sec.  2118.  A  carrier  of  property  must  deliver  it  to  the  consignee,  at  the  place 
to  which  it  is  addressed,  in  the  manner  usual  at  that  place. 

7119.  Place  of  delivery. 

Sec  2119.  If  there  is  no  usage  to  the  contrary  at  the  place  of  delivery,  freight 
must  be  delivered  as  follows : 

1 .  If  carried  upon  a  railway  owned  or  managed  by  the  carrier,  it  may  be 
delivered  at  the  station  nearest  to  the  place  to  which  it  is  addressed ; 

2.  If  carried  by  sea  from  a  foreign  country,  it  may  be  delivered  at  the  wharf 
where  the  ship  moors,  within  a  reasonable  distance  from  the  place  of  address; 
or,  if  there  is  no  wharf,  on  board  a  lighter  alongside  the  ship;  or, 

3.  In  other  cases,  it  must  be  delivered  to  the  consignee  or  his  agent,  person- 
ally, if  either  can,  with  reasonable  diligence,  be  found. 

789 


7120-7131  Cn^IL  CODE. 

7120.  OUigations  of  carrier  wlienfreigJit  not  delivered. 

Sec.  2120.  If,  for  any  reason,  a  carrier  does  not  deliver  freight  to  the  con- 
signee or  bis  agent  personally,  he  must  give  notice  to  the  consignee  of  its 
arrival,  and  keep  the  same  in  safety,  upon  his  responsibility  as  a  -warehouse- 
man, until  the  consignee  has  had  a  reasonable  time  to  remove  it.  If  the  place  of 
residence  or  business  of  the  consignee  be  unknown  to  the  carrier,  he  may  give 
the  notice  by  letter  dropped  in  the  nearest  post-office.  [Amendvient,  approved 
March  30,  1874;  Amendments  1873-4,  247;  took  effect  July  1, 1874.^''> 

7121.  Carrier,  how  exonerated  from  liahilUij. 

Sec.  2121.  If  a  consignee  does  not  accept  and  remove  freight  within  a  rea- 
sonable time  after  the  carrier  has  fulfilled  his  obligation  to  deliver,  or  duly 
ofiered  to  fulfill  the  same,  the  carrier  may  exonerate  himself  from  further 
liability  by  jjlaciug  the  freight  in  a  suitable  warehouse,  on  storage,  on  account 
of  the  consignee,  and  giving  notice  thereof  to  him.  [Amendment,  approved 
March  30,  1874;  Amendments  1873-4,  248;  took  effect  July  1,  1874."'^ 

7122.  [Sec.  2122'"^  was  repealed  by  act  ajjproved  March  30, 1874;  Amendments 
1873-4,  248;  took  effect  July  1,  1874.] 

ARTICLE   III. 

BILL  OF  LADING. 

7126.  ^(7/  of  lading,  what. 

Sec.  212G.  A  bill  of  lading  is  an  instrument  in  writing,  signed  by  a  carrier  or 
his  agent,  describing  the  freight  so  as  to  identify  it,  stating  the  name  of  the 
consignor,  the  terms  of  the  contract  for  carriage,  and  agreeing  or  directing  that 
the  freight  be  delivered  to  the  order  or  assigns  of  a  specified  person  at  a  sj^ecified 
place. 

7127.  Bill  of  lading  negotiable. 

Sec  2127.  All  the  title  to  the  freight  which  the  first  holder  of  a  bill  of  lading 
had  when  he  received  it,  passes  to  every  subsequent  indorsee  thereof  in  good 
faith  and  for  value,  in  the  ordinary  course  of  business,  vdth.  like  effect  and  in 
like  manner  as  in  the  case  of  a  bill  of  exchange. 

7128.  Same. 

Sec.  2128.  When  a  bill  of  lading  is  made  to  "bearer,"  or  in  equivalent  terms, 
a  simple  transfer  thereof,  by  delivery,  conveys  the  same  title  as  an  indorsement. 

7129.  E(f<'i-t  of  hill  of  lading  on  rights,  etc.,  of  carrier. 

Sec  2129.  A  bill  of  lading  does  not  alter  the  rights  or  obligations  of  the 
carrier,  as  defined  in  this  chapter,  unless  it  is  plainly  inconsistent  therewith. 

7130.  ]>ilh  of  lading  to  he  given  to  consignor. 

Sec  2130.  A  canier  must  subscribe  and  deliver  to  the  consignor,  on  demand, 
any  reasonable  number  of  bills  of  lading,  of  the  same  tenor,  expressing  truly 
the  original  contract  for  carriage;  and  if  he  refuses  to  do  so,  the  consignor  may 
take  the  freight  from  him,  and  recover  from  him,  besides,  all  damage  thereby 
occasioned. 

7131.  Carrier  exonerated  by  delivery  according  to  bill  of  lading. 

Sec  2131.  A  can-ier  is  exonerated  from  liability  for  freight  by  deliveiy 
thereof,  in  good  faith,  to  any  holder  of  a  bill  of  lading  therefor,  properly  in- 
dorsed, or  made  in  favor  of  the  bearer. 

(a)  The  original  section  did  not  have  the  last  sen-  (c)  Repealed  Bectlon: 

tence,  find  inBtead  of  "  ■warebouHc-man  "  it  had  the  word  Skc.  21'2'i.  If  a  I'ouBignee  of  freight  cannot  with  rea- 

"CHiTic-r."  BoniiMi-  (lili(,'ciii-c  be  found,  tlie  carrier  may  place  it  in 

(fc)  The  original  section  (lid  not  have  the  wordB  "  on  ii  Biiil.iM'-  wiU'lMnisc  Icpr  liis  account,  but  must  give 

account  of  the  conBignee."  notice  thereof  to  the  cousiguor. 

790 


CARRIAGE.  7132-7148 

7132.   Carrier  may  demand  surrender  of  MR  of  lading  before  delivery. 

Sec.  2132.  When  a  carrier  lias  given  a  bill  of  lading,  or  other  instrument  sub- 
stantially equivalent  thereto,  he  may  require  its  surrender,  or  a  reasonable 
indemnity  against  claims  thereon,  before  delivering  the  freight. 

ARTICLE  IV. 

FREIGHTAGE. 

7136.  When  freightage  in  to  he  paid. 

Sec.  2136.  A  carrier  may  require  his  freightage  to  be  paid  upon  his  receiving 
the  freight;  but  if  he  does  not  demand  it  then,  he  cannot  until  he  is  ready  to 
deliver  the  freight  to  the  consignee. 

7137.  Consignor,  ichen  liable  for  freightage. 

Sec.  2137.  The  consignor  of  freight  is  jn-esumed  to  be  liable  for  the  freight- 
age; but  if  the  contract  between  him  and  the  carrier  provides  that  the  consignee 
shall  pay  it,  and  the  carrier  allows  the  consignee  to  take  the  freight,  he  cannot 
afterwards  recover  the  freightage  from  the  consignor, 

7138.  Consignee,  when  liable. 

Sec.  2138.  The  consignee  of  freight  is  liable  for  the  freightage,  if  he  accepts 
the  freight  with  notice  of  the  intention  of  the  consignor  that  he  shovild  pay  it. 

7139.  Natural  increase  of  freight. 

Sec.  2139.  No  freightage  can  be  charged  upon  the  natural  increase  of  freight. 

7140.  Apportionment  by  cordract. 

Sec.  2140.  If  freightage  is  apportioned  by  a  bill  of  lading  or  other  contract 
made  between  a  consignor  and  carrier,  the  carrier  is  entitled  to  payment, 
according  to  the  apportionment,  for  so  much  as  he  delivers. 

7141.  Same. 

Sec.  2141.  If  a  part  of  the  freight  is  accepted  by  a  consignee,  without  a 
specific  objection  that  the  rest  is  not  delivered,  the  freightage  must  be  appor- 
tioned and  paid  as  to  that  part,  though  not  apportioned  in  the  oiiginal 
contract. 

7142.  Apportionment  according  to  distance. 

Sec.  2142.  If  a  consignee  voluntarily  receives  freight  at  a  place  short  of  the 
one  appointed  for  delivery,  the  carrier  is  entitled  to  a  just  proportion  of  the 
freightage,  according  to  distance.  If  the  carrier,  being  ready  and  willing, 
offers  to  complete  the  transit,  he  is  entitled  to  the  full  freightage.  If  he  does 
not  thus  offer  comj^letion,  and  the  consignee  receives  the  freight  only  from 
necessity,  the  carrier  is  not  entitled  to  any  freightage. 

7143.  Freight  carried  further  than  agreed,  etc. 

Sec.  2143.  If  freight  is  carried  further,  or  more  expeditiously,  than  was 
agreed  upon  by  the  parties,  the  carrier  is  not  entitled  to  additional  compensation, 
and  cannot  refuse  to  deliver  it,  on  the  demand  of  the  consignee,  at  the  place 
and  time  of  its  arrival. 

7144.  Carrier's  lien  for  freightage. 

Sec.  2144.  A  carrier  has  a  lien  for  freightage,  which  is  regulated  by  the  title 
on  liens. 

ARTICLE  V. 

GENERAL  AVERAGE. 

7148.  Jettison  and  general  average,  xchat. 

Sec.  2148.  A  carrier  by  water  may,  when  in  case  of  extreme  peril  it  is  necessary 
for  the  safety  of  the  ship  or  cargo,  throw  overboard,  or  otherwise  sacrifice,  any 
or  all  of  the  cargo  or  appurtenances  of  the  ship.     Throwing  property  overboard 

791 


7148-7161  CmL  CODE. 

for  such  pnii-)Ose  is  called  jettison,  and  the  loss  incurred  thereby  is  called  a 
general  average  loss. 

7149.  Order  of  jettison. 

Sec.  2149.  A  jettison  must  begin  with  the  most  bulky  and  least  valuable 
article,  so  far  as  possible. 

7150.  By  whom  made. 

Sec.  2150.  A  jettison  can  be  made  only  by  authority  of  the  master  of  a  ship, 
except  in  case  of  his  disability,  or  of  an  oveiTuling  necessity,  when  it  may  be 
made  by  any  other  person. 

7151.  Zo.^.9,  hoio  borne. 

Sec.  2151.  The  loss  incurred  by  a  jettison,  when  lawfully  made,  must  be  borne 
in  due  proportion  by  all  that  part  of  the  ship,  appurtenances,  freightage,  and 
cargo  for  the  benefit  of  which  the  sacrifice  is  made,  as  well  as  by  the  owner  of 
the  thing  sacrificed. 

7152.  General  average  loss,  how  adjusted. 

Sec.  2152.  The  proj^ortions  in  which  a  general  average  loss  is  to  be  borne 
must  be  ascertained  by  an  adjustment,  in  which  the  owner  of  each  separate 
interest  is  to  be  charged  with  such  proportion  of  the  value  of  the  thing  lost  as 
the  value  of  his  i^art  of  the  iDrojDcrty  aifected  bears  to  the  value  of  the  whole. 
But  an  adjustment  made  at  the  end  of  the  voyage,  if  valid  there,  is  valid  every- 
where. 

7153.  Values,  how  ascertained. 

Sec.  2153.  In  estimating  values  for  the  jDurj^ose  of  a  general  average,  the 
ship  and  appurtenances  must  be  valued  as  at  the  end  of  the  voyage,  the  freight- 
age at  one  half  the  amount  due  on  delivery,  and  the  cargo  as  at  the  time  and 
place  of  its  discharge;  adding,  in  each  case,  the  amount  made  good  by  contri- 
bution. 

7154.  Tilings  stowed  on  deck. 

Sec  2154.  The  owner  of  things  stowed  on  deck,  in  case  of  their  jettison,  is 
entitled  to  the  benefit  of  a  general  average  contribution  only  in  case  it  is  usual 
to  stow  such  things  on  deck  upon  such  a  voyage. 

7155.  Application  of  the  foregoing  rules. 

Sec  2155.  The  rules  herein  stated  concerning  jettison  are  equally  ai^plicable 
to  every  other  voluntary  sacrifice  of  property  on  a  ship,  or  expense  necessarily 
incurred,  for  the  preservation  of  the  ship  and  cargo  from  extraordinary  perils. 

CHAPTEE  IV. 

CARRIAGE  OF  MESSAGES. 

7161.   Ohligalions  of  carrier  of  messages. 

Skc  21G1.  A  carrier  of  messages  for  reward,  other  than  by  telegraph,  must 
deliver  them  at  the  place  to  which  they  are  addressed,  or  to  the  person  for 
whom  they  are  intended.  Such  carrier,  by  telegraph,  must  deliver  them  at 
such  place  and  to  such  person,  provided  the  place  of  address,  or  the  person  for 
whom  they  are  intended,  is  within  a  distance  of  two  miles  from  the  main  office 
of  the  carrier  in  the  city  or  town  to  which  the  messages  are  transmitted,  and 
the  carrier  is  not  required,  in  making  the  delivery,  to  j^ay  on  his  route  toll  or 
ferriage;  but  for  any  distance  beyond  one  mile  from  such  office,  comjionsation 
may  be  charged  for  a  messenger  employed  by  the  carrier.  [Amendment,  ap- 
proved March  30,  1874;  Amendments  1873-4,  248;  took  effect  July  1,  1874.^^> 

(a)  The  original  Bection  conHibtcd  of  tUo  first  eeutence  aloue,  leaving  out  the  words  "  other  than  by  telegraph.' 

792 


CAKRIAGE.  71G2-7175 

7162.   Care  and  diligence  required. 

Sec.  21G2.  A  carrier  of  messages  for  reward  must  use  great  care  and  diligence 
in  the  transmission  and  delivery  of  messages.  [Amendment,  approved  March  30, 
1874;  Amendments  1873-4,  249 j  took  effect  Juhjl,  1874.^''^ 

CHAPTER  V. 

COMMON   CAllRIERS. 

Article    I.  Common  Carrikks  in  Genkeal 71G8 

II.  Common  Carriers  of  Persons 7180 

III.  Common  Carriers  of  Property 7194 

IV.  Common  Carriers  of  Messages 7207 

ARTICLE  I. 

COMMON    CAKRIEKS   IN    GENERAL. 

7168.  Common  carrier,  what. 

Sec.  21G8.  Every  one  who  offers  to  the  public  to  carry  persons,  property,  or 
messages,  excepting  only  telegraphic  messages,  is  a  common  carrier  of  whatever 
he  thus  offers  to  carry.  [Amendment,  approved  March  30,  1874;  Amendments 
1873-4,  249;  took  effect  July  1,  1874.^*> 

7169.  Obligation  to  accept  freight. 

Sec.  2169.  A  common  carrier  must,  if  able  to  do  so,  accept  and  carry  what- 
ever is  offered  to  him,  at  a  reasonable  time  and  place,  of  a  kind  that  he  under- 
takes or  is  accustomed  to  carry. 

7170.  Obligation  not  to  give  preference. 

Sec.  2170.  A  common  carrier  must  not  give  preference,  in  time,  price,  or 
otherwise,  to  one  person  over  another,  except  where  expressly  authorized  by 
statute. 

7171.  What  preferences  he  must  give. 

Sec.  2171.  A  common  carrier  must  always  give  a  preference  in  time,  and  may 
give  a  j)reference  in  price,  to  the  United  States  and  to  this  state. 

7172.  3Iust  start  on  time. 

Sec.  2172.  A  common  carrier  must  start  at  such  time  and  place  as  he 
announces  to  the  public,  unless  detained  by  accident  or  the  elements,  or  in 
order  to  connect  with  carriers  on  other  lines  of  travel.  [Amendment,  approved 
March  30,  1874;  Amendments  1873-4,  249;  took  effect  July  1,  1874."=> 

7173.  Compensation. 

Sec  2173.  A  common  carrier  is  entitled  to  a  reasonable  compensation  and  no 
more,  which  he  may  require  to  be  paid  in  advance.  If  payment  thereof  is  re- 
fused, he  may  refuse  to  carry. 

7174.  Obligations,  how  limited. 

Sec  2174.  The  obligations  of  a  common  carrier  cannot  be  limited  by  general 
notice  on  his  i)art,  but  may  be  limited  by  special  contract.  [Amendment,  ap- 
proved March  30,  1874;  Amendments  1873-4,  249;  took  effect  July  1,  1874.*"' 

7175.  Certain  agreements  void. 

Sec  2175.  A  common  carrier  cannot  be  exonerated,  by  any  agreement  made 

(a)  The  original  gectioB  had  an  additional  sentence  (d)  Original  eection: 

as  follows:  "A  carrier  liy  telegraph  must  use  the  ut-         Sec.  217-t.  The  rights  and  obligations  of  a  common 
most  diligence  therein."  carrier  cannot  be  altered  by  notice  on  his  part,  or  by 

(6)  The  original  section  did  not  have  the -words  "ex-  any  other  means,  except  a  written  agreement  between 
cepting  only  telegraphic  messages."  him  and  the  person  with  whom  he  deals. 

(c)  The  original  section  consisted  of  the  first  clause 
alone,  down  to  and  including  the  words  "  to  the  pub- 
lic." 

793 


7175-7181  Cn^IL  CODE. 

in  anticipation  thereof,  from  liability  for  the  gross  negligence,  fraud,  or  willful 
wrong  of  himself  or  his  servants. 

7176.  Wrllfc7i  contract  carrier. 

Sec.  2176.  A  passenger,  consignor,  or  consignee,  by  accepting  a  ticket,  bill  of 
lading,  or  written  contract  for  carriage,  with  a  knowledge  of  its  terms,  assents  to 
the  rate  of  hire,  the  time,  place,  and  manner  of  delivery  therein  stated;  and 
also  to  the  limitation  stated  therein  upon  the  amount  of  the  carrier's  lialnlity  in 
case  property  cariied  in  packages,  trunks,  or  boxes,  is  lost  or  injured,  when  the 
value  of  such  jjroperty  is  not  named;  and  also  to  the  limitation  stated  therein 
to  the  earner's  liability  for  loss  or  injury  to  live  animals  carried.  But  his  assent 
to  any  other  modification  of  the  carrier's  obligations  contained  in  such  instru- 
ment can  be  manifested  only  by  his  signature  to  the  same.  [Ameruhnent,  ap- 
proved March  30,  1874;  Amendments  1873-4,  249;  took  effect  July  1,  1874."" 

7177.  When  not  liable  for  loss. 

Sec  2177.  A  common  carrier  is  not  responsible  for  loss  or  miscarriage  of  a 
letter,  or  j^ackage  having  the  form  of  a  letter,  containing  money  or  notes,  bills 
of  exchange,  or  other  paj^ers  of  value,  unless  he  be  informed  at  the  time  of  its 
receipt  of  the  value  of  its  contents.  [Neiv  section,  approved  March  30,  1874; 
Amendments  1873-4,  250;  took  effect  July  1,  1874. 

ARTICLE  II. 

COMMON    CAKEIERS    OF    PERSONS. 

;  2180.     A  common  currier  of  persons,  unless  his  vehicle 

is  fitted  for  the  reception  of  perm  m  exclusively,  must  receive  i  •           i  •   i      •     £+4.    if       j.i 

and  carry  a  reasonable  amount  of  luggage  for  each  passenger,  ^^^   veUlClC  IS  Utted  lor  tlie 

without  ciiarge,  except  for  an  excess' of  weight  over  one  hun-  carrv  a  I'easonable  amount 

/toiJwo,"' o/«  'l/ZT'^1 '  ^"""'"^f  "'"*  '^  T''  '^'T'  *'  f  ^ept  for  an  excess  of  weight 

pro/j)  leio)   of  a  Mage  line,  he  may  not  receive  and  carry  for  each  ^  ^ 

pasgeiiffer  by  mtch  stage  line,    without  charr/e,   more  than   sixti/ 
founds  of  luggage.     [In  effect,  May  8,  1878.'| 


jj- 


Sec.  2181.  Luggage  may  consist  of  any  articles  intended  for  the  use  of  a 
passenger  Avhile  traveling,  or  for  his  personal  equipment. 

7182.  Liability  for  luggage. 

Sec  2182.  The  liability  of  a  can'ier  for  luggage  received  by  him  with  a  pas- 
senger is  the  same  as  that  of  a  common  carrier  of  propert}'. 

7183.  Luggage,  how  carried  and  delivered. 

Sfx'.  2183.  A  common  carrier  must  deliver  every  passenger's  luggage,  whether 
within  the  prescribed  weight  or  not,  immediately  vipon  the  arrival  of  the  jms- 
senger  at  his  destination;  and,  unless  the  vehicle  would  be  overcrowded  or 
overloaded  thereby,  must  carry  it  on  the  same  vehicle  by  which  he  carries  the 
passenger  to  whom  it  belonged,  except  that  where  luggage  is  transported  by 
rail,  it  must  be  checked  and  carried  in  a  regular  baggage  car;  and  whenever 
passengers  neglect  or  refuse  to  have  their  luggage  so  checked  and  transjDorted, 
it  is  can-ied  at  theii*  risk.  [Amendment,  approved  March  30,  1874;  Amendments 
1873-4,  250;  took  effect  July  1,  1874.(''> 

7184.  Obligation  to  provide  vehicles. 

Sec  2184.  A  common  carrier  of  persons  must  provide  a  sufficient  number  of 
vehicles  to  accommodate  all  the  passengers  who  can  be  reasonably  exj)ected  to 
require  carnage  at  any  one  time. 

(a)  Tho   original  Bt-ctifm   di'l   not  have  the  clause  [h)  The  original  section  had  the  word  "  belongs " 

commencing  with  the  words  "  and  bIho  to  the  liinita-     luHtead  of  ■  Ijelouged,"  and  did  not  have  any  of  the 

tlon  stated, "  and  ending  with  "  live  auimalH  carried."     subsequent  clause,  commencing  with  the  words  "  ex- 
cept that  where." 

794 


CARRIAGE.  7185-7197 

7185.  Seats  for  passengers. 

Sec.  2185.  A  common  carrier  of  persons  must  provide  every  passen^'er  with  a 
seat.     He  must  not  overload  Lis  vehicle  by  receiving  and  carrying  more  pas- 
sengers than  its  rated  capacity  allows. 
7188.   Rerjulations  for  conduct  of  business. 

Sec.  2186.  A  common  carrier  of  persons  may  make  rules  for  the  conduct  of 
his  business,  and  may  require  passengers  to  conform  to  them,  if  they  are  lawful, 
public,  uniform  in  their  application,  and  reasonable. 

7187.  Fare,  ivhen  payable. 

Sec  2187,  A  common  carrier  may  demand  the  fare  of  passengers,  either  at 
starting  or  at  any  subsequent  time. 

7188.  Ejection  ofjMssengers. 

Sec.  2188.  A  passenger  who  refuses  to  pay  his  fare  or  to  conform  to  any 
lawful  regulation  of  the  earner,  may  be  ejected  from  the  vehicle  by  the  carrier. 
But  this  must  be  done  with  as  little  violence  as  possible,  and  at  any  usual  stop- 
ping-place, or  near  some  dwelling-house. 

7189.  Passenger  ivho  has  not  paid  fare. 

Sec.  2189.  A  passenger  upon  a  railroad  train  who  has  not  paid  his  fare  before 
entering  the  train,  if  he  has  been  afforded  an  opportunity  to  do  so,  must,  upon 
demand,  pay  ten  per  cent,  in  addition  to  the  regular  rate. 

7190.  Fare  not  payable  after  ejection. 

Sec  2190.  After  having  ejected  a  passenger,  a  carrier  has  no  right  to  require 
the  payment  of  any  part  of  his  fare. 

7191.  Carrier's  lien. 

Sec  2191.  A  common  carrier  has  a  lieu  upon  the  luggage  of  a  passenger 
for  the  payment  of  such  fare  as  he  is  entitled  to  from  him.  This  lien  is  regu- 
lated by  the  title  on  liens, 

ARTICLE  III. 

COMMON   CARRIERS    OF    PROPERTY. 

7194.  Liability  of  inland  carriers  for  loss. 

Sec  2194.  Unless  the  consignor  accompanies  the  freight  and  retains  exclu- 
sive control  thereof,  an  inland  common  carrier  of  property  is  liable,  from  the 
time  that  he  accepts  until  he  relieves  himself  from  liability  pursuant  to  sections 
2118  to  2122,  for  the  loss  or  injury  thereof  from  any  cause  whatever,  except: 

1.  An  inherent  defect,  vice,  or  weakness,  or  a  spontaneous  action,  of  the 
j)ropei'ty  itself; 

2.  The  act  of  a  public  enemy  of  the  United  States,  or  of  this  state; 

3.  The  act  of  the  law;  or, 

4.  Any  irresistible  superhuman  cause, 

7195.  Wheji  exemjMons  do  not  apply. 

Sec  2195.  A  common  carrier  is  liable,  even  in  the  cases  excepted  by  the  last 
section,  if  his  ordinary  negligence  exposes  the  property  to  the  cause  of  the  loss. 

7196.  Liability  for  delay. 

Sec  2196,  A  common  carrier  is  liable  for  delay  only  when  it  is  caused  by  his 
want  of  ordinary  care  and  diligence.  [Amendment,  approved  March  30,  1874; 
Amendments  1873-4,  251;  took  effect  July  1,  1874,^^> 

7197.  Liability  of  marine  carriers. 

Sec  2197,  A  marine  carrier  is  liable  in  like  manner  as  an  inland  carrier, 
except  for  loss  or  injury  caused  by  the  perils  of  the  sea  or  fire. 

(a)  The  original  section,  instead  of  "  caused  by  bis  want  of  ordinary  care  and  diligence,"  bad  tbo  words  "  tbe 
effect  of  bis  ordinary  negligence." 

795 


7198-7207  CrV'IL  CODE. 

7198.  Same. 

Skc.  2198.  The  liability  of  a  common  carrier  by  sea  is  further  regulated  by 
acts  of  congress. 

7199.  Perils  of  sea,  ichaf. 

Skc.  2199.  Perils  of  the  sea  are  from: 

1.  Storms  and  waves; 

2.  Rocks,  shoals,  and  raj^ids; 

3.  Other  obstacles,  though  of  human  origin; 

4.  Changes  of  climate; 

5.  The  confinement  necessary  at  sea; 

6.  Animals  f)eculiar  to  the  sea;  and, 

7.  All  other  dangers  i^eculiar  to  the  sea. 

7200.  Limitation  of  liability  without  notice. 

Sec  2200.  A  common  carrier  of  gpld,  silver,  platina,  or  precious  stones,  or 
of  imitations  thereof,  in  a  manufactured  or  unmanufactured  state;  of  time- 
l^ieces  of  any  description;  of  negotiable  paper  or  other  valuable  writiugs;  of 
pictures,  glass  or  chinaware;  of  statuary,  silk,  or  laces;  or  of  plated  ware  of 
any  kind,  is  not  liable  for  more  than  fifty  dollars  upon  the  loss  or  injuiy  of  any 
pne  package  of  such  articles,  unless  he  has  notice,  upon  his  receipt  thereof,  by 
mark  uj^on  the  package  or  otherwise,  of  the  nature  of  the  freight;  nor  is  such 
carrier  liable  upon  any  package  carried  for  more  than  the  value  of  the  articles 
named  in  the  receipt  or  the  bill  of  lading.  [Amendment,  approved  March  30, 
1874;  Amendments  1873-4,  251;  took  effect  July  1,  1874.^=^' 

7201.  Di'livery  of  freight  beyond  usual  route. 

Sec.  2201.  If  a  common  carrier  accepts  freight  for  a  place  beyond  his  usual 
route,  he  must,  unless  he  stipulates  otherwise,  deliver  it  at  the  end  of  his  route 
in  that  direction  to  some  other  comj^etent  carrier  carrying  to  the  place  of  ad- 
dress, or  connected  with  those  who  thus  carry,  and  his  liability  ceases  upon 
making  such  delivery. 

7202.  Proof  to  be  given  in  case  of  loss. 

Sec  2202.  If  freight  addressed  to  a  place  beyond  the  usual  route  of  the  com- 
mon carrier  who  first  received  it  is  lost  or  injured,  he  must,  within  a  reasonable 
time  after  demand,  give  satisfactory  proof  to  the  consignor  that  the  loss  or 
injuiy  did  not  occur  while  it  was  in  his  charge,  or  he  will  be  himself  liable 
therefor. 

7203.  Carrier's  services,  other  than  carriage  and  delivery. 

Sec.  2203.  In  resi:)ect  to  any  service  rendered  by  a  common  carrier  about 
freight,  other  than  its  carriage  and  delivery,  his  rights  and  obligations  are  de- 
fined b}'  the  titles  on  deposit  and  service. 

7204.  Sale  of  perishable  property  for  freightage. 

Sec  2204.  If,  from  any  cause  other  than  want  of  ordinary  care  and  diligence 
on  his  part,  a  common  carrier  is  unable  to  deliver  jierishable  property  trans- 
ported \)y  him,  and  collect  his  charges  thereon,  he  may  cause  the  property  to 
bo  sold  in  open  market,  to  satisf}'  his  lien  for  freightage.  [New  section,  ap)proved 
March  30,  1874;  Amendments  1873-4,  251;  took  effect  July  1,  1874. 

ARTICLE  IV. 

COMMON    CARRIERS    OF    MESSAGES. 

7207.   Order  of  transmission  of  lelegraphu^  messages. 

Sec  2207.  A  carrier  of  messages  by   telegraph   must,  if  it  is   practicable, 

fa)  The  original  Bt-ction  did  not  have  the  words  "  of  nor  did  it  have  the  last  clauBe  commencing  with  the 
Statuary,  bilk  or  lacfs;  or  of  i^latc-d  ware  of  any  l£ind ;"     words  "  nor  is  such  carrier  liable," 

796 


TRUST.  7207-7219 

transmit  every  such  message  immediately  upon  its  receipt.  But  if  this  is  not 
practicable,  and  several  messages  accumulate  upon  his  hands,  he  must  transmit 
them  in  the  following  order: 

1.  Messages  from  jjublic  agents  of  the  United  States  or  of  this  state,  on 
public  business; 

2.  Messages  intended  in  good  faith  for  immediate  publication  in  newspapers, 
and  not  for  any  secret  use; 

3.  Messages  giving  information  relating  to  the  sickness  or  death  of  any 
person ; 

4.  Other  messages  in  the  order  in  which  they  were  received. 

7208.  Order  in  other  cases. 

Sec.  2208.  A  common  carrier  of  messages,  otherwise  than  by  telegraph,  must 
transmit  messages  in  the  order  in  which  he  receives  them,  except  messages  from 
agents  of  the  United  States  or  of  this  state,  on  public  business,  to  which  he 
must  always  give  priority.  But  he  may  fix  uj^on  certain  times  for  the  simul- 
taneous transmission  of  messages  previousl}^  received. 

7209.  Damages  when  message  is  refused  or  postponed. 

Sec.  2209.  Every  person  whose  message  is  refused  or  postponed,  contrary  to 
the  provisions  of  this  chapter,  is  entitled  to  recover  from  the  carrier  his  actual 
damages,  and  fifty  dollars  in  addition  thereto. 


TITLE  YIII. 

®ru0t. 

Chapter  I.  Trusts  in  General 7215 

II.  Trusts  for  the  Benefit  of  Third  Persons 7250 

CHAPTEE  I. 

TRUSTS  IN   GENERAL. 

Abticle  I.  Natuee  and  Ceeation  of  a  TaasT 7215 

II.  Obligations  of  Tbustees 7228 

III.  Obligations  of  Thibd  Persons 7213 

ARTICLE  I. 

NATURE    AND    CREATION    OF   A   TRUST. 

7215.  Trusts  classified. 

Sec.  2215.  A  trust  is  either: 

1.  Voluntary;  or, 

2.  Involuntary. 

7216.  Voluntary  trust,  what. 

Sec.  2216.  A  voluntary  trust  is  an  obligation  arising  out  of  a  personal  con- 
fidence reposed  in,  and  voluntarily  accepted  by,  one  for  the  benefit  of  another. 

7217.  Involuntary  trust,  what. 

Sec  2217.  An  involuntary  trust  is  one  Avhich  is  created  by  operation  of  law. 

7218.  Parties  to  the  contract. 

Sec  2218.  The  person  whose  confidence  creates  a  trust  is  called  the  trustor; 
the  person  in  whom  the  confidence  is  reposed  is  called  the  trustee;  and  the 
person  for  whose  benefit  the  trust  is  created  is  called  the  beneficiary. 

7219.  What  constitutes  one  a  trustee. 

Sec.  2219.  Every  one  who  voluntarily  assumes  a  relation  of  personal  confidence 

797 


7219-7230  Cn^IL  CODE. 

■^ith  auotlier  is  cleemed  a  trustee,  witliin  the  meaning  of  tliis  chapter,  not  only 
as  to  the  person  -who  reposes  such  confidence,  hnt  also  as  to  all  persons  of 
•whose  aifairs  he  thus  acquires  information  whicli  was  given  to  such  person  in 
the  like  confidence,  or  over  whose  affairs  he,  by  such  confidence,  obtains  any 
control. 

7220.  For  xL'hat  purpose  a  trust  may  be  created. 

Sec.  2220.  A  trust  may  be  created  for  any  purpose  for  which  a  contract  may 
lawfully  be  made,  except  as  otherwise  prescribed  by  the  titles  on  uses  and  trusts 
and  on  transfers. 

7221.  Voluntary  trust,  how  created  as  to  trustor. 

Sec.  2221.  Subject  to  the  provisions  of  section  852,  a  voluntary  trust  is 
created,  as  to  the  trustor  and  beneficiar}',  by  any  words  or  acts  of  the  trustor, 
indicating  with  reasonable  certainty: 

1.  An  intention  on  the  part  of  the  trustor  to  create  a  trust;  and, 

2.  The  subject,  purpose,  and  beneficiary  of  the  trust. 

7222.  Hoio  created  as  to  trustee. 

Sec.  2222.  Subject  to  the  provisions  of  section  852,  a  voluntary  trust  is 
created,  as  to  the  tnistee,  by  any  words  or  acts  of  his  indicating,  with  reason- 
able certainty: 

1.  His  acceptance  of  the  trust,  or  his  acknowledgment,  made  upon  sufficient 
consideration,  of  its  existence;  and, 

2.  The  subject,  purpose,  and  beneficiary  of  the  trust. 

7223.  Involuntary  trustee,  icho  is. 

Sec  2223.  One  who  wrongfully  detains  a  thing  is  an  involuntary  trustee 
thereof,  for  the  benefit  of  the  owner. 

7224.  Jnvolantary  trust  resulting  from  negligence,  etc. 

Sec.  2224.  One  who  gains  a  thing  by  fraud,  accident,  mistake,  undue  influ- 
ence, the  violation  of  a  trust,  or  other  wrongful  act,  is,  unless  he  has  some  other 
and  better  right  thereto,  an  involuntary  trustee  of  the  thing  gained,  for  the 
benefit  of  the  person  who  would  otherwise  have  had  it. 

[As  to  involuntary  deposit,  see  also  ante,  681G.] 

AETICLE  II. 

OBLIGATIONS    OF    TRUSTEES. 

7228.  Trustee's  ohligation  to  good  faith. 

Sec.  2228.  In  all  matters  connected  with  his  trust,  a  trustee  is  bound  to  act 
in  the  highest  good  faith  toward  his  beneficiary,  and  may  not  obtain  any  advan- 
tage therein  over  the  latter  by  the  slightest  misrepresentation,  concealment, 
tlu-e:it,  or  adverse  pi-essui-e  of  any  kind. 

7229.  Trustee  not  to  use  properly  fur  his  oicnp7'ofU. 

Sec  2229.  A  trustee  may  not  use  or  deal  with  the  trust  projierty  for  his  own 
])rofit,  or  for  any  other  purpose  unconnected  with  the  trust  in  any  manner. 

7230.  (Jcrlain  transaclions  forbidden. 

Sec.  2230.  Neither  a  trustee  nor  any  of  his  agents  may  take  part  in  any 
transaction  concerning  the  trust  in  which  he  or  any  one  for  whom  he  acts  as 
agent  has  an  interest,  present  or  contingent,  adverse  to  that  of  his  beneficiary, 
except  as  follows: 

1.  "When  the  beneficiary,  having  capacit}'  to  contract,  with  a  full  knowledge 
of  the  motives  of  the  trustee,  and  of  all  other  facts  concerning  the  transaction 
which  might  affect  his  own  decision,  and  without  the  use  of  any  influence  on 
the  part  of  tlie  trustee,  permits  him  to  do  so. 

2.  "When  the  Ijcneficiary  not  having  capacity  to  contract,  the  proper  court, 
ujion  the  like  information  of  the  facts,  grants  the  like  permission;  or, 

798 


TEUST.  7230-7244 

3.  "When  some  of  the  beuefieiaries  having  capacity  to  contract,  and  some  not 
having-  it,  the  former  grant  permission  for  themselvea,  and  the  proper  court  for 
the  latter,  in  the  manner  above  prescribed. 

7231.  Ti'ustee's  influence  not  lo  he  used  for  Jus  advantnr/e. 

Sec.  2231.  A  trustee  ma}-  not  use  the  inlkience  which  his  position  gives  him 
to  obtain  any  advantage  from  his  beneficiary. 

7232.  Trui<tee  not  to  assume  a  trust  adverse  to  interest  of  beneficiary. 

Sec.  2232.  No  trustee,  so  long  as  he  remains  in  the  trust,  may  undertake 
another  trust  adverse  in  its  nature  to  the  interest  of  his  beneficiary  in  the  sub- 
ject of  the  trust,  without  the  consent  of  the  latter. 

7233.  To  disclose  adverse  interest. 

Sec.  2233.  If  a  trustee  acquires  any  interest,  or  becomes  charged  with  any 
duty,  adverse  to  the  interest  of  his  beneficiary  in  the  subject  of  the  trust,  he 
must  immediately  inform  the  latter  thereof,  and  may  be  at  once  removed. 

7234.  Trustee  guilty  of  fraud,  ivhen. 

Sec.  2234.  Every  violation  of  the  provisions  of  the  jDreceding  sections  of  this 
article  is  a  fraud  against  the  beneficiary  of  a  titist. 

7235.  Presumption  against  trustees. 

Sec.  2235.  All  transactions  between  a  trustee  and  his  beneficiai-y  during  the 
existence  of  the  trust,  or  while  the  influence  acquired  by  the  trustee  remains, 
by  which  he  obtains  any  advantage  from  his  beneficiary,  are  presumed  to  be 
entered  into  by  the  latter  without  sufficient  consideration,  and  under  undue 
influence. 

7236.  Trustee  mingling  trust  property  iviih  his  own. 

Sec.  2236.  A  trustee  who  willfully  and  unnecessarily  mingles  the  trust  prop- 
erty with  his  own,  so  as  to  constitute  himself  in  appearance  its  absolute  owner, 
is  liable  for  its  safety  in  all  events. 

7237.  Measure  of  liahility  for  breach  of  trust. 

Sec.  2237.  A  trustee  who  uses  or  disposes  of  the  trust  property,  contrary  to 
section  2229,  may,  at  the  option  of  the  beneficiary,  be  required  to  account  for 
all  profits  so  made,  or  to  pay  the  value  of  its  use,  and,  if  he  has  disposed 
thereof,  to  replace  it,  with  its  fruits,  or  to  account  for  its  proceeds,  with  interest. 

7238.  Same. 

Sec.  2238.  A  trustee  who  uses  or  disposes  of  the  trust  projierty  in  any  manner 
not  authorized  by  the  trust,  but  in  good  faith,  and  with  intent  to  serve  the 
interests  of  the  beneficiary,  is  liable  only  to  make  good  whatever  is  lost  to  the 
beneficiary  by  his  error. 

7239.  Go-trustees,  how  far  liable  for  each  other. 

Sec.  2239.  A  trustee  is  responsible  for  the  wrongful  acts  of  a  co-trustee  to 
which  he  consented,  or  which,  by  his  negligence,  he  enabled  the  latter  to  com- 
mit, but  for  no  others. 

AETICLE  IIJ. 

OBLIGATIONS    OF    THIRD    PERSONS. 

7243.  Third  persons,  xohen  involuntary  trustees. 

Sec.  2243.  Every  one  to  whom  property  is  transferred  in  violation  of  a  trust, 
holds  the  same  as  an  involuntary  trustee  under  such  trust,  unless  he  purchased 
it  in  good  faith,  and  for  a  valuable  consideration. 

7244.  When  third  person  must  see  lo  application  of  trust  property. 

Sec.  2244.  One  who  actually  and  in  good  faith  transfers  any  money  or  other 
property  to  a  trustee,  as  such,  is  not  bound  to  see  to  the  application  thereof, 

799 


7244-7260  CIYIL  CODE. 

and  his  rights  can  in  no  "way  be  prejudiced  by  a  misapplication  thereof  by  the 
trustee.  Other  persons  must,  at  their  peril,  see  to  the  proper  application  of 
money  or  other  property  paid  or  delivered  by  them. 


CHAPTEK  II. 

TRUSTS  FOR  THE   BENEFIT   OF   THIRD   PERSONS. 

Aeticle   I.  Natuke  and  Creation  of  the  Tkust 7250 

II.   Obligations  of  Tkustees 7258 

III.  Powers  of  Trustees 72(57 

IV.  JiiGHTS  OF  Trustees 727.3 

T.  Termination  of  the  Trust 7279 

YI.  Succession  or  Appointment  of  New  Trustees 7287 

ARTICLE  I. 

NATURE  AND  CREATION  OF  THE  TRUST. 

7250.  TT7io  are  trustees  icitlun  scope  of  this  chcqjter. 

Sec.  2250.  The  provisions  of  this  chapter  apply  only  to  express  trusts,  created 
for  the  benefit  of  another  than  the  trustor,  and  in  which  the  title  to  the  trust 
property  is  vested  in  the  trustee;  not  including,  however,  those  of  executors, 
administrators,  and  guardians,  as  such. 

7251.  Creation  of  trust. 

Sec.  2251.  The  mutual  consent  of  a  trustor  and  trustee  creates  a  trust  of 
which  the  beneficiary  may  take  advantage  at  any  time  prior  to  its  rescission. 

7252.  Trustees  appointed  by  court. 

Sec.  2252.  When  a  trustee  is  a^jpointed  by  a  couri  or  public  officer,  as  such, 
such  court  or  officer  is  the  trustor,  within  the  meaning  of  the  last  section. 

7253.  Declaration  of  trust. 

Sec.  2253.  The  nature,  extent,  and  object  of  a  trust  are  expressed  in  the  dec- 
laration of  tiTist. 

7254.  Same. 

Sec  2254.  All  declarations  of  a  trustor  to  his  trustees,  in  relation  to  the 
trust,  before  its  accej^tance  by  the  trustees,  or  any  of  them,  are  to  be  deemed 
part  of  the  declaration  of  the  trust,  except  that  when  a  declaration  of  trust  is 
made  in  writing,  all  previous  declarations  by  the  same  trustor  are  merged 
therein. 

ARTICLE  II. 

OBLIGATIONS    OF    TRUSTEES. 

7258.  Trustees  must  obey  declaration  of  trust. 

Sec  2258.  A  trustee  must  fulfill  the  purpose  of  the  ti-ust,  as  declared  at  its 
creation,  and  must  follow  all  the  directions  of  the  trustor  given  at  that  time, 
except  as  modified  by  the  consent  of  all  parties  interested,  in  the  same  manner, 
and  to  the  same  extent,  as  an  employee. 

7259.  Degree  (f  care  and  diligence  in  execution  of  trust. 

Sec.  2259.  A  trustee,  whether  he  receives  any  compensation  or  not,  must  use 
at  least  ordinary  care  and  diligence  in  the  execution  of  his  trust. 

7260.  Duty  of  trustee  as  to  appointment  of  successor. 

Sec.  22G0.  If  a  trustee  procures  or  assents  to  his  discharge  from  his  office, 
before  his  trust  is  fully  executed,  he  must  use  at  least  ordinary  care  and  dili- 
gence to  secure  the  appointment  of  a  trustwoiihy  successor  before  accepting  his 
own  final  discharge. 

SCO 


TRUST.  7201-. 

7261.  Investment  of  money  by  trustee. 

Sec.  22G1.  A  trustee  must  invest  money  received  by  Lim  under  the  tiiist,  as 
fast  as  lie  collects  a  sufficient  amount,  in  such  manner  as  to  aftbrd  reasonable 
security  and  interest  for  the  same. 

7262.  Interest,  simple  or  compound,  on  omission,  to  invest  trust  moneys. 

Sec.  22G2.  If  a  trustee  omits  to  invest  the  ti-ust  moneys  according  to  the  last 
section,  he  must  pay  simple  interest  thereon,  if  such  omission  is  negligent 
merely,  and  compound  interest  if  it  is  willful. 

7263.  Purchase  by  trustee  of  claims  against  trust  fund. 

Sec  2263.  A  trustee  cannot  enforce  any  claim  against  the  tiiist  property 
which  he  purchases  after  or  in  contemplation  of  his  appointment  as  trustee; 
but  he  may  be  allowed,  by  any  competent  court,  to  charge  to  the  trust  prop- 
erty what  he  has  in  good  faith  paid  for  the  claim,  upon  discharging  the  same. 

AETICLE  III. 

POWERS    OF   TRUSTEES. 

7267.  Trustee's  jxnvers  as  agent. 

Sec.  2267.  A  trustee  is  a  general  agent  for  the  trust  property.  His  authority 
is  such  as  is  conferred  upon  him  by  the  declaration  of  trust  and  by  this  chapter, 
and  none  other.  His  acts,  within  the  scope  of  his  authority,  bind  the  trust 
property  to  the  same  extent  as  the  acts  of  an  agent  bind  his  principal. 

7268.  All  must  act. 

Sec  2268.  Where  there  are  several  co-trustees,  all  must  unite  in  any  act  to 
bind  the  trust  property,  unless  the  declaration  of  trust  otherwise  provides. 

7269.  Discretionary  poioers. 

Sec  2269.  A  discretionary  power  conferred  upon  a  trustee  is  presumed  not 
to  be  left  to  his  arbitrary  discretion,  but  may  be  controlled  by  the  proper  court 
if  not  reasonably  exercised,  unless  an  absolute  discretion  is  clearly  conferred 
by  the  declaration  of  trust. 

AETICLE  IV. 

RIGHTS    OF    trustees. 

7273.  Indemnification  of  trustee. 

Sec  2273.  A  trustee  is  entitled  to  the  repayment,  out  of  the  tiiist  j^roperty, 
of  all  expenses  actually  and  properly  incurred  by  him  in  the  performance  of 
his  trust.  He  is  entitled  to  the  repayment  of  even  unlawful  expenditures,  if 
they  were  productive  of  actual  benefit  to  the  estate. 

7274.  Compensation  of  trustee. 

Sec  2274.  When  a  declaration  of  trust  is  silent  upon  the  subject  of  compen- 
sation, the  trustee  is  entitled  to  the  same  compensation  as  an  executor.  If  it 
specifies  the  amount  of  his  compensation  he  is  entitled  to  the  amount  thus  speci- 
fied and  no  more.  If  it  directs  that  he  shall  be  allowed  a  compensation,  but 
does  not  specify  the  rate  or  amount,  he  is  entitled  to  such  compensation  as  may 
be  reasonable  under  the  circumstances. 

7275.  Involuntary  trustee. 

Sec  2275.  An  involuntary  trustee,  who  becomes  such  through  his  own  fault, 
has  none  of  the  rights  mentioned  in  this  article. 

51  801 


4  CIVIL  CODE. 

AKTICLE   V. 

TERMINATION    OF    THE    TRUST. 

Trust,  hoxo  extinguished. 
Sec.  2279.  A  trust  is  extiiiguislied  by  the  entire  fulfillment  of  its  object,  or 
by  such  object  becoming  impossible  or  unla^Yful. 

7280.  Not  revocable. 

Sec.  2280.  A  trust  cannot  be  revoked  by  the  trustor  after  its  acceptance, 
actual  or  jiresumed,  by  the  trustee  and  beneficiaries,  except  by  the  consent  of 
all  the  beneficiaries,  unless  the  declaration  of  trust  reserves  a  power  of  revoca- 
tion to  the  trustor,  and  in  that  case  the  power  must  be  strictly  pursued. 

7281.  Trustee's  office,  hoiv  vacated. 

Sec.  2281.  The  office  of  a  trustee  is  vacated: 

1.  By  his  death;  or, 

2.  By  his  discharge. 

7282.  Trustee,  how  discharged. 

Sec.  2282.  A  trustee  can  be  discharged  from  his  trust  only  as  follows: 

1.  By  the  extinction  of  the  trust; 

2.  By  the  completion  of  his  duties  under  the  trust; 

3.  By  such  means  as  may  be  prescribed  by  the  declaration  of  trust; 

4.  By  the  consent  of  the  beneficiary,  if  he  had  caj)acity  to  contract; 

5.  B3'  the  judgment  of  a  competent  tribunal,  in  a  direct  proceeding  for  that 
purpose,  that  he  is  of  unsound  mind;  or, 

C.  By  the  district  court, 

7283.  Removal  by  district  court. 

Sec.  2283.  The  district  court  may  remove  any  trustee  who  has  violated  or  is 
unfit  to  execute  the  trust;  or  may  accept  the  resignation  of  a  trustee. 

AETICLE  VI. 

SUCCESSION    OR    APPOINTMENT    OF    NEW    TRUSTEES. 

7287.  Vacant  trusteeship  filled  by  court. 

Sec.  2287.  The  district  court  may  appoint  a  trustee  whenever  there  is  a 
vacancy,  and  the  declaration  of  trust  does  not  provide  a  practicable  method  of 
appointment. 

7288.  Survivorship  betxceen  co-trustees. 

Sec.  2288.  On  the  death,  renunciation  or  discharge  of  one  of  several  co-trus- 
tees the  trust  survives  to  the  others. 

7289.  District  court  as  trustee. 

Sec  2289.  TMien  a  trust  exists  without  any  appointed  tinistee,  or  where  all 
the  trustees  renounce,  die  or  are  discharged,  the  district  court  of  the  county 
where  the  trust  propei-ty,  or  some  portion  thereof  is  situated,  must  appoint 
another  trustee,  and  direct  the  execution  of  the  trust.  The  court  may,  in  its 
discretion,  appoint  the  original  number,  or  any  less  number  of  trustees. 


802 


AGENCY.  7295-730G 


TITLE   TX. 


Chapter  I.  Agency  in  General 721)5 

II.  Particular  Agencies 1'M')'2 

CHAPTER  I. 

AGENCY  IN   GENERAL. 

Article   I.  Dkfinition  of  Agency 7293 

II.  Authority  of  Agents 7304 

III.  MuTLTAL  Obligations  of  Principals  and  Third  Persons 7330 

IV.  Obligations  of  Agents  to  Third  Persons 7342 

V .  Delegation  of  Agency 73-i'J 

VI.  Termination  of  Agency 73.55 

AETICLE  I. 

definition  of  agency. 

7295.  Agency,  what. 

Sec.  2295.  An  agent  is  one  who  represents  another,  called  the  principal,  in 
dealings  with  third  persons.     Such  reiDresentation  is  called  agency. 

7296.  Who  may  appoint,  and  who  may  be  an  agent. 

Sec.  2296.  Any  person  having  capacity  to  contract  may  aj)point  an  agent,  and 
any  person  may  be  an  agent. 

7297.  Agents,  general  or  special. 

Sec.  2297.  An  agent  for  a  particular  act  or  transaction  is  called  a  special 
agent.     All  others  are  general  agents. 

7298.  Agency,  actual  or  ostensible. 

Sec.  2298.  An  agency  is  either  actual  or  ostensible. 

7299.  Actual  agency. 

Sec.  2299.  An  agency  is  actual  when  the  agent  is  really  employed  by  the 
principal. 

7300.  Ostensible  agency. 

Sec.  2300.  An  agency  is  ostensible  when  the  principal  intentionally,  or  by 
want  of  ordinary  cai'e,  causes  a  third  person  to  believe  another  to  be  his  agent 
who  is  not  really  employed  by  him. 

ARTICLE  II. 

authority  of  agents. 

7304.  What  authority  may  he  conferred. 

Sec  2304.  An  agent  may  be  authorized  to  do  any  acts  which  his  principal 
might  do,  except  those  to  which  the  latter  is  bound  to  give  his  personal 
attention. 

7305.  Agent  may  perform  acts  required  of  principal  by  code. 

Sec  2305.  Every  act  which,  according  to  this  code,  may  be  done  by  or  to 
any  person,  may  be  done  by  or  to  the  agent  of  such  person  for  that  purpose, 
unless  a  contrary  intention  clearly  appears. 

7306.  Agent  cannot  have  authority  to  defraud  princij^al. 

Sec.  2306.  An  agent  can  never  have  authority,  either  actual  or  ostensible,  to 
do  an  act  which  is,  and  is  known  or  suspected  by  the  person  with  whom  he 
deals,  to  be  a  fraud  upon  the  principal. 

803 


7307-7319  CIVIL  CODE. 

7307.  Creation  of  agency. 

Sec.  2307.  An  agency  may  be  created,  and  an  autliority  may  be  conferred, 
by  a  precedent  authorization  or  a  subsequent  ratification. 

7308.  Consideration  unnecessary. 

Sec.  2308.  A  consideration  is  not  necessary  to  make  an  authority,  "whether 
precedent  or  subsequent,  binding  upon  the  principal. 

7309.  Form  of  authority. 

Si:c.  2309.  An  oral  authorization  is  sufficient  for  any  purpose,  except  that  an 
authority  to  enter  into  a  contract  required  by  law  to  be  in  -writing  can  only  be 
given  by  an  instrument  in  writing. 

7310.  Ratification  of  agent's  act. 

Sec.  2310.  A  ratification  can  be  made  only  in  the  inanner  that  would  have 
been  necessary  to  confer  an  original  authority  for  the  act  ratified,  or  where  an 
oral  authorization  would  suffice,  by  accejjting  or  retaining  the  benefit  of  the  act, 
with  notice  thereof. 

7311.  Batif  cation  of  part  of  a  transaction. 

Sec.  2311.  Ratification  of  part  of  an  indivisible  transaction  is  a  ratification  of 
the  whole. 

7312.  When  ratification  void. 

Sec.  2312.  A  ratification  is  not  valid  unless,  at  the  time  of  ratifying  the  act 
done,  the  princij)al  has  power  to  confer  authority  for  such  an  act. 

7313.  Ratification  not  to  xcork  injury  to  third  persons. 

Sec  2313.  No  unauthorized  act  can  be  made  valid,  retroactively,  to  the  preju- 
dice of  third  persons,  without  their  consent. 

7314.  Rescission  of  ratification. 

Sec  2314.  A  ratification  may  be  rescinded  when  made  without  such  consent 
as  is  required  in  a  contract,  or  with  an  imperfect  knowledge  of  the  material 
facts  of  the  transaction  ratified,  but  not  otherwise. 

7315.  Measure  of  agent's  authority. 

Sec  2315.  An  agent  has  such  authority  as  the  princii:)al,  actually  or  ostensi- 
bly, confers  upon  him. 

7316.  Actual  authority,  ichat. 

Sec  2316.  Actual  authority  is  such  as  a  j:)rincipal  intentionally  confers  upon 
the  agent,  or  intentionally,  or  by  want  of  ordinary  care,  allows  the  agent  to 
believe  himself  to  possess. 

7317.  Ostensible  authority,  u-hat. 

Sec  2317.  Ostensible  authority  is  such  as  a  principal,  intentionally  or  by 
want  of  ordinary  care,  causes  or  allows  a  third  person  to  believe  the  agent  to 
2)Ossess. 

7318.  Agent's  authority  as  to  persons  having  notice  of  restrictions  upon  it. 

Sec  2318.  Eveiy  agent  has  actually  such  authority  as  is  defined  by  this  title, 
unless  specially  deprived  thereof  by  his  principal,  and  has  even  then  such 
authority  ostensibly,  excei)t  as  to  persons  who  have  actual  or  constructive  notice 
of  the  restriction  upon  his  authority. 

7319.  Agent's  nece.^.^ary  authority. 
Sec  2319.  An  agent  has  authority: 

1.  To  do  everj-thing  necessary  or  proper  and  usual,  in  the  ordinary  course  of 
business,  for  eflecting  the  i»ur[)ose  of  his  agency;  and, 

2.  To  make  a  re])resentation  respecting  any  matter  of  fact,  not  including  the 
terms  of  his  authority,  but  upon  which  Ijis  right  to  use  his  authority  depends, 
and  the  tinith  of  which  cannot  be  determined  by  the  use  of  reasonable  diligence 
on  the  part  of  the  person  to  whom  the  representation  is  made. 

804 


AGENCY.  7320-733-t 

7320.  Agent's  poiver  to  disobey  instrucdoiix. 

Sec.  2320.  An  agent  has  power  to  disobey  instructions  in  dealing-  witli  tlie 
subject  of  tlie  agency,  in  cases  where  it  is  clearly  for  the  interest  of  his  priii- 
cij^al  that  he  should  do  so,  and  there  is  not  time  to  communicate  willi  the 
principal. 

7321.  Authority  to  he  construed  by  its  specific,  rather  than  t»i  its  (jmcral  tmns. 
Sec.  2321.  "When  an  authority  is  given  partly  in  general  and  i)artly  in  specific 

terms,  the  general  authority  gives   no  higher  powers   than  those  specifically 
mentioned. 

7322.  Exceptions  to  general  authoritij. 

Sec.  2322.  An  authority  expressed  in  general  terms,  however  broad,  does 
not  authorize  an  agent: 

1.  To  act  in  his  own  name,  unless  it  is  the  usual  course  of  business  to  do  so; 

2.  To  define  the  scoj^e  of  his  agency;  or, 

3.  To  do  any  act  which  a  trustee  is  forbidden  to  do  by  Article  II,  Chapter  I, 
of  the  last  title, 

7323.  What  included  in  authority  to  sell  personal  property. 

Sec.  2323.  An  authority  to  sell  personal  property  includes  authority  to 
warrant  the  title  of  the  principal,  and  the  quality  and  quantity  of  the  prop- 
erty. 

7324.  What  included  in  authority  to  sell  real  property . 

Sec,  2324.  An  authority  to  sell  and  convey  real  property  includes  authority 
to  give  the  usual  covenants  of  warranty, 

7325.  Authority  of  general  agent  to  receive  pirice  of  property. 

Sec.  2325.  A  general  agent  to  sell,  who  is  intrusted  by  the  principal  with  the 
possession  of  the  thing  sold,  has  authority  to  receive  the  price. 

7326.  Authority  of  special  agent  to  7-eceive  price. 

Sec.  2326.  A  special  agent  to  sell  has  authority  to  receive  the  j^rice  on  de- 
livery of  the  thing  sold,  but  not  afterwards. 

AKTICLE  III. 

MUTUAL    OBLIGATIONS    OF    PRINCIPALS    AND    THIRD    PERSONS, 

7330.  Principal,  hoto  affected  by  acts  of  agent  ivithin  scope  of  authority. 

Sec  2330,  An  agent  represents  his  principal  for  all  purposes  within  the  scope 
of  his  actual  or  ostensible  authority,  and  all  the  rights  and  liabilities  which 
would  accrue  to  the  agent  from  transactions  within  such  limit,  if  they  had  been 
entered  into  on  his  own  account,  accrue  to  the  principal, 

7331.  Principal,  ivheii  bound  by  incomplete  execution  of  authority. 

Sec.  2331,  A  principal  is  bound  b}'  an  incomplete  execution  of  an  authority, 
when  it  is  consistent  with  the  whole  purpose  and  scope  thereof,  but  not  other- 
wise, 

7332.  Notice  to  agent,  when  notice  to  principal. 

Sec,  2332.  As  against  a  principal,  both  principal  and  agent  are  deemed  to 
have  notice  of  whatever  either  has  notice  of,  and  ought,  in  good  faith  and  the 
exercise  of  ordinary  care  and  diligence,  to  communicate  to  the  other. 

7333.  Obligation  of  principal  when  agent  exceeds  his  authority. 

Sec.  2333.  "When  an  agent  exceeds  his  authority,  his  principal  is  bound  by 
his  authorized  acts  so  far  only  as  they  can  be  plainly  separated  from  those 
w^hich  are  unauthorized. 

7334.  For  acts  done  under  a  merely  ostensiJjle  axdhority. 

Sec.  2334,  A  principal  is  bound  by  acts  of  his  agent,  under  a  merely  osten- 

^805 


7334-7345  CIVIL  CODE. 

sible  authority,  to  those  persons  only  who  have  in  good  faith,  and  without 
ordinaiy  negligence,  incurred  a  liability  or  parted  with  value,  tipon  the  faith 
thereof. 

7335.  When  exclusive  credit  is  given  to  agent. 

Sec.  2335.  If  exclusive  credit  is  given  to  an  agent  by  the  person  dealing  with 
him,  his  principal  is  exonerated  by  payment  or  other  satisfaction  made  by  him 
to  his  agent  in  good  faith,  before  receiving  notice  of  the  creditor's  election  to 
hold  him  resjDonsible. 

7336.  Higlits  of  person  who  deals  with  agent  without  knoioledge  of  agency. 

Sec.  2336.  One  who  deals  with  an  agent  w^ithout  knowing  or  having  reason 
to  believe  that  the  agent  acts  as  such  in  the  transaction,  may  set  off  against  any 
claim  of  the  princij^al  arising  out  of  the  same,  all  claims  which  he  might  have 
set  off  against  the  agent  before  notice  of  the  agency. 

7337.  Instrument  intended  to  hind  principal  does  bind  him. 

Sec.  2337.  An  instrument  within  the  scojie  of  his  authority  by  which  an 
agent  intends  to  bind  his  principal,  does  bind  him  if  such  intent  is  plainly 
inferable  from  the  instrument  itself. 

7338.  Frincipars  responsibilifg for  agent's  negligence  or  omission. 

Sec.  2338.  Unless  required  by  or  under  the  authority  of  law  to  employ  that 
particular  agent,  a  principal  is  responsible  to  third  persons  for  the  negligence 
of  his  agent  in  the  transaction  of  the  business  of  the  agency,  including  wrong- 
ful acts  committed  by  such  agent  in  and  as  a  j)art  of  the  transaction  of  such 
business,  and  for  his  willful  omission  to  fulfill  the  obligations  of  the  principal. 

7339.  Principal's  rcsponsibHiiy  for  icrongs  iviUfuUy  committed  bg  the  agent. 

Sec.  2339.  A  principal  is  responsible  for  no  other  wrongs  committed  hj  his 
agent  than  those  mentioned  in  the  last  section,  unless  he  has  authorized  or  rati- 
fied them,  even  though  they  are  committed  while  the  agent  is  engaged  in  his 
sen-ice. 

AKTICLE   IV. 

OBLIGATIONS    OF    AGENTS    TO    THIRD    PERSONS. 

7342.  Warranty  of  authority. 

Sec.  2342.  One  who  assumes  to  act  as  an  agent  thereby  Avarrants,  to  all  who 
deal  with  him  in  that  capacity,  that  he  has  the  authority  which  he  assumes. 

7343.  Agent's  responsibility  to  third  persons. 

Sec.  2343.  One  who  assumes  to  act  as  an  agent  is  responsible  to  third  persons 
as  a  principal  for  his  acts  in  the  course  of  his  agency,  in  any  of  the  following 
eases,  and  in  no  others: 

1 .  "When,  with  his  consent,  credit  is  given  to  him  jDcrsonally  in  a  transaction; 

2.  AVhen  he  enters  into  a  written  contract  in  the  name  of  his  principal,  with- 
out believing,  in  good  faith,  that  he  has  authority  to  do  so;  or, 

3.  AN'hen  his  acts  are  wrongful  in  their  nature. 

7344.  Obligation  of  agent  to  surrender  property  to  third  person. 

Sec.  2344.  If  an  agent  receives  anything  for  the  benefit  of  his  principal,  to 
the  possession  of  which  anotlier  person  is  entitled,  he  must,  on  demand,  sur- 
render it  to  such  person,  or  so  much  of  it  as  he  has  under  his  control  at  the 
time  of  demand,  on  being  indemnified  for  any  advance  which  he  has  made  to 
his  principal,  in  good  faith,  on  account  of  the  same;  and  is  responsible  therefor, 
if,  after  notice  from  the  owner,  he  delivers  it  to  his  principal. 

7345.  Agent  not  having  capacity  to  contract. 

Si;c.  2345.  The  provisions  of  this  article  are  subject  to  the  provisions  of  Part 
I,  Division  Fii'st,  of  this  Code. 

80G 


AGENCY.  7349-73G2 

•    ARTICLE  V. 

DELEGATION    OF    AGENCY, 

7349.  Agent's  delerjntion  of  his  poxvers. 

Sec.  2349.  An  agent,  unless  specially  forbidden  by  his  principal  to  do  so,  can 
delegate  bis  powers  to  another  person  in  any  of  the  following  cases,  and  in  no 
others : 

1.  When  the  act  to  be  done  is  purely  mechanical; 

2.  When  it  is  such  as  the  agent  cannot  himself,  and  the  sub-agent  can  law- 
fully perform; 

3.  When  it  is  the  usage  of  the  place  to  delegate  such  powers;  or, 

4.  When  such  delegation  is  specially  authorized  by  the  princii)al. 

7350.  Agent's  unauthorized  employment  of  sub-agent. 

Sec.  2350.  If  an  agent  employs  a  sub-agent  without  authority,  the  former  is 
a  principal  and  the  latter  his  agent,  and  the  principal  of  the  former  has  no  con- 
nection with  the  latter. 

7351.  Sub-agent  rightfully  appointed  represents  principal. 

Sec.  2351.  A  sub-agent,  lawfully  appointed,  represents  the  principal  in  like 
manner  with  the  original  agent;  and  the  original  agent  is  not  responsible  to 
third  jDcrsons  for  the  acts  of  the  sub-agent. 

ARTICLE  VI.    • 

TEEMINATION    OF    AGENCY. 

7355.  Termination  of  agency. 

Sec  2355.  An  agency  is  terminated,  as  to  every  person  having  notice  thereof, 
by: 

1.  The  expiration  of  its  term; 

2.  The  extinction  of  its  subject; 

3.  The  death  of  the  agent; 

4.  His  renunciation  of  the  agency;  or, 

5.  The  incapacity  of  the  agency  to  act  as  such, 

7356.  Same. 

Sec  2356.  Unless  the  power  of  an  agent  is  coupled  with  an  interest  in  the 
subject  of  the  agency,  it  is  terminated,  as  to  every  person  having  notice  thereof, 
by: 

1.  Its  revocation  by  the  principal; 

2.  His  death;  or, 

3.  His  incajDacity  to  contract. 

CHAPTER  II. 

PARTICULAR  AGENCIES. 

Abticle   I.  Auctioneers '  "^^2 

II.  Factoes 7367 

III.  ShIPMASTEES    AND    PiLOTS I'HZ 

IV.  Ships'  Managees  7388 

ARTICLE  I. 

auctioneers. 

7362.  Auctioneer's  authority  from  the  seller. 

Sec  2362.  An  auctioneer,  in  the  absence  of  special  authorization  or  usage  to 
the  contrary,  has  authority  from  the  seller,  only  as  follows: 

807 


7362-7376  CIVIL  CODE. 

1.  To  sell  by  public  auction  to  the  highest  bidder; 

2.  To  sell  for  cash  only,  except  such  articles  as  are  usually  sold  on  credit  at 
auction; 

3.  To  warrant,  in  like  manner  with  other  agents  to  sell,  according  to  section 
2323; 

4.  To  prescribe  reasonable  rules  and  terms  of  sale; 

5.  To  deliver  the  things  sold,  upon  payment  of  the  price; 

6.  To  collect  the  price;  and, 

7.  To  do  whatever  else  is  necessary,  or  proper  and  usual,  in  the  ordinary 
course  of  business,  for  effecting  these  purposes. 

7363.  Auctioneer's  authority  from  the  bidder. 

Sec.  2363.  An  auctioneer  has  authority  from  a  bidder  at  the  auction,  as  well 
as  from  the  seller,  to  bind  both  by  a  memorandum  of  the  contract  as  j^rescribed 
in  the  title  on  sale. 

ARTICLE  II. 

FACTORS. 

7367.  Factor,  xohat. 

Sec  23G7.  A  factor  is  an  agent,  as  defined  by  section  202G. 

7368.  Actual  authority  of  factor. 

Sec  23G8.  In  addition  to  the  authority  of  agents  in  general,  a  factor  has 
actual  authority  from  his  princijDal,  unless  specially  restricted: 

1.  To  insure  property  consigned  to  him  uninsured; 

2.  To  sell,  on  credit,  anything  intrusted  to  him  for  sale,  except  such  things 
as  it  is  contrary  to  usage  to  sell  on  credit;  but  not  to  pledge,  mortgage,  or 
barter  the  same;  and, 

3.  To  delegate  his  authority  to  his  partner  or  servant,  but  not  to  any  person 
in  an  independent  employment. 

7369.  Ostensible  authority. 

Sec  2369.  A  factor  has  ostensible  authority  to  deal  with  the  property  of  his 
jirincipal  as  his  own,  in  transactions  with  persons  not  ha\'ing  notice  of  the  actual 
ownershij). 

ARTICLE  III. 

SHIPMASTERS   AND    PILOTS. 

7373.  Authority  of  shipmaster  on  be] lalf  of  shipowner. 

Sec  2373.  The  master  of  a  ship  is  a  general  agent  for  its  owner  in  all  matters 
concerning  the  same. 

7374.  Autliority  to  horroio. 

Sec  2374.  The  master  of  a  ship  has  authority  to  borrow  monc}^  on  the  credit 
of  its  owner,  if  it  is  necessary  to  enable  him  to  complete  the  voyage,  and  if 
neither  the  owner  nor  his  proper  agent  for  such  matters  can  be  consulted  with- 
out injurious  delay. 

7375.  Authority  of  shipmaster. 

Sf:c.  2375.  The  master  of  a  ship,  during  a  voyage,  is  a  general  agent  for  each 
of  the  owners  of  the  cargo,  and  has  authority  to  do  whatever  they  might  do  for 
the  preservation  of  their  respective  interests,  but  he  cannot  sell  or  hypothecate 
the  cargo,  except  in  the  cases  mentioned  in  this  article.  [Amendment,  approved 
March  30,  1874;  Amendments  1873-4,  251;  took  effect  July  1,  1874.^''> 
IdTlQ.  Power  to  make  contracts. 

Sec  2376.  The  master  of  a  ship  may  procure  all  its  necessary  repairs  and 
supplies,  may  engage  cargo  and  passengers  for  carriage,  and,  in  a  foreign  port, 

(a)  The  original  Bection  after  "  interests  "  bad  only  tlie  words  "  except  to  sell  or  hji'othecate  the  same." 

808 


AGENCY.  737G-7385 

niaj^  enter  into  a  charter-party;  and  Lis  contracts  for  those  purposes  bind  the 
owner  to  the  full  amount  of  the  value  of  the  ship  and  freightage. 

7377.  Power  of  shipmaster  to  Ixypothccate. 

Sec.  2377.  The  master  of  a  ship  may  hypothecate  the  ship,  freiglitage  and 
cargo,  and  sell  part  of  the  cargo,  in  the  cases  prescribed  bj'  the  chapters  on 
bottomry  and  respondentia,  and  in  no  othei's,  except  that  the  master  may  also 
sell  the  cargo  or  any  part  of  it  short  of  the  jiort  of  destination,  if  found  to  be  of 
such  perishable  nature,  or  in  such  damaged  condition  that  if  left  on  board  or 
reshipped,  it  would  be  entirely  lost,  or  would  seriously  endanger  the  interests 
of  its  owners.  [Amendment,  approved  March  30,  1874 ;  Amendments  1873-4, 
252;  took  effect  July  1,  1874.<''> 

7378.  Master's  poioer  to  sell  ship. 

Sec.  2378.  When  a  ship,  whether  foreign  or  domestic,  is  seriously  injured,  or 
the  voyage  is  otherwise  broken  up,  beyond  the  possibility  of  pursuing  it,  the 
master,  in  case  of  necessity,  may  sell  the  ship  without  instructions  from  the 
owners,  unless  by  the  earliest  use  of  ordinary  means  of  communication  he  can 
inform  the  owners,  and  await  their  instructions. 

7379.  Master' s  power  to  sell  cargo. 

Sec.  2379.  The  master  of  a  ship  may  sell  the  cargo,  if  the  voyage  is  broken 
up  beyond  the  possibility  of  pursuing  it,  and  no  other  ship  can  be  obtained  to 
carry  it  to  its  destination,  and  the  sale  is  otherwise  absolutely  necessary. 

7380.  Authority  to  ransom  ship. 

Sec.  2380.  The  master  of  a  ship,  in  case  of  its  capture,  may  engage  to 
pay  a  ransom  for  it,  in  money  or  in  part  of  the  cargo,  and  his  engagement  will 
bind  the  ship,  freightage,  and  cargo. 

7381.  Abandonment  terminates  master's  poiver. 

Sec  2381.  The  power  of  the  master  of  a  ship  to  bind  its  owner,  or  the  owners 
of  the  cargo,  ceases  upon  the  abandonment  of  the  ship  and  freightage  to 
insurers. 

7382.  Personal  liability  for  contracts  concerning  the  shijy. 

Sec  2382.  Unless  otherwise  expressly  agreed,  or  unless  the  contracting 
parties  give  exclusive  credit  to  the  owner,  the  master  of  a  ship  is  personally 
liable  ujDon  his  contracts  relative  thereto,  even  when  the  owner  is  also  liable. 

7383.  Liability  for  acts  of  iiersons  employed  upon  the  ship. 

Sec  2383.  The  master  of  a  ship  is  liable  to  third  persons  for  the  acts  or  neg- 
ligence of  persons  employed  in  its  navigation,  whether  aj)pointed  by  him  or  not, 
to  the  same  extent  as  the  owner  of  the  ship. 

7384.  Responsibility  for  negligence  of  pilot. 

Sec  2384.  The  owner  or  master  of  a  ship  is  not  responsible  for  the  negligence 
of  a  pilot  whom  he  is  bound  by  law  to  employ;  but  if  he  is  allowed  an  option 
betweeji^  pilots,  some  of  whom  are  competent,  or  is  required  only  to  pay  com- 
pensation to  a  pilot,  whether  he  employs  him  or  not,  he  is  so  responsible  to 
third  persons. 

7385.  Obligations  of  shipowner  to  owner  of  cargo. 

Sec  2385.  The  owner  of  a  ship  is  bound  to  pay  to  the  owner  of  her  cargo  the 
market  value  at  the  time  of  arrival  of  the  ship  at  the  port  of  her  destination,  of 
that  portion  of  her  cargo  which  has  been  sold  to  enable  the  master  to  pay  the 
necessary  repairs  and  supplies  of  the  ship.  [New  section,  approved  March  30, 
1874;  Amendments  1873-4,  252;  took  effect  July  1,  1874. 

(a)  Original  section:  tlie  chapters  on  bottomry  and  respondentia,  and  in  no 

Sec.  2377.  The  master  of  a  ship  may  hypothecate  the     others, 
ship,  freightage,  and  cargo  in  the  cases  prescribed  by 

809 


7388-7402  CIVIL  CODE. 

ARTICLE  IV. 

ships'  managers. 

7388.  What  poioers  manager  has. 

Sec.  2388.  A  ship's  manager  has  iDOwer  to  make  contracts  requisite  for  the 
performance  of  his  duties  as  such;  to  enter  into  charter-parties,  or  make  con- 
tracts for  carriage;  and  to  settle  for  freightage  and  adjust  averages. 

7389.  What  poioers  he  has  not. 

Sec.  2389.  "Without  special  authority  a  shijj's  manager  cannot  borrow  mone}-- 
or  give  up  the  lien  for  freightage,  or  purchase  a  cargo,  or  Lind  the  owners  of 
the  ship  to  an  insui'ance. 


TITLE  X. 

Chapter    I.  Partnership  in  General 7395 

II.  General  Partnership 7424 

III.  Speclil  Partnership 7477 

IV.  Mining  Partnership 7511 

CHAPTER  I. 

PARTNERSHIP  IN   GENERAL. 

Article    I.  What  Constitutes  a  Partnership 7395 

II.  Partnership  Property 7401 

III.  Mutual  Obligations  or  Partners 7410 

lY.  IIencnciation  of  Partnership 7417 

ARTICLE  I. 

WHAT    constitutes    A   PARTNERSHIP. 

7395.  Partnership,  what. 

Sec.  2395.  Partnership  is  the  association  of  two  or  more  persons,  for  the 
purpose  of  caiiying  on  business  together,  and  dividing  its  profits  between  them. 

7396.  Shipoioners. 

Sec  239G.  Part  owners  of  a  ship  do  not,  by  simply  using  it  in  a  joint  enter- 
prise, become  partners  as  to  the  ship. 

7397.  Formation  of  partnership. 

Sec  2397.  A  pai'tnership  can  be  formed  only  by  the  consent  of  all  the  parties 
thereto,  and  therefore  no  new  partner  can  be  admitted  into  a  partnership  with- 
out the  consent  of  ever}'  existing  member  thereof. 

ARTICLE  II. 

PARTNERSHIP    PROPERTY. 

7401.  Partnership  properly,  xulial. 

Sec  2401.  The  pro^jerty  of  a  partnership  consists  of  all  that  is  contributed  to 
the  common  stock  at  the  formation  of  the  partnershij),  and  all  that  is  subse- 
quently acquired  thereby. 

7402.  Partner's  interest  in  pjartnership  prf>2)ert)j. 

Sec.  2402.  The  interest  of  each  member  of  a  partnership  extends  to  every 
portion  of  its  property. 

810 


PAKTNERSHIP.  7403-7417 

7403.  Partner's  share  in  2>rofits  and  losses. 

Sec.  2403.  In  the  absence  of  any  agreement  on  the  subject  the  shares  of 
partners  in  the  profit  or  loss  of  the  business  are  equal,  and  the  share  of  each 
in  the  partnership  property  is  the  value  of  his  original  contribution,  increased 
or  diminished  by  his  share  of  profit  or  loss. 

7404.  Wlien  division  of  losses  implied. 

Sec.  2404.  An  agreement  to  divide  the  profits  of  a  business  implies  an  agree- 
ment for  a  corresponding  division  of  its  losses,  unless  it  is  otherwise  expressly 
stijDulated. 

7405.  Partner  may  require  application  of  partnership  property  to  payment  of 

debts. 

Sec.  2405.  Each  member  of  a  partnership  may  require  its  property  to  l>e  ap- 
plied to  the  discharge  of  its  debts,  and  has  a  lien  upon  the  shares  of  the  other 
l^artners  for  this  purpose,  and  for  the  payment  of  the  general  balance  if  any 
due  to  him. 

7406.  What  jyropeiiy  is  partnership  property  by  presumption. 

Sec.  2406.  Property,  whether  real  or  personal,  acquired  with  partnership 
funds,  is  presumed  to  be  partnership  property. 

ARTICLE  III. 

MUTUAL    OBLIGATION    OF    PARTNERS. 

7410.  Partners  trustees  for  each  other. 

Sec.  2410.  The  relations  of  partners  are  confidential.  They  are  trustees  for 
each  other  within  the  meaning  of  Chapter  I  of  the  title  on  trusts,  and  their  ob- 
ligations as  such  trustees  are  defined  by  that  chapter. 

7411.  Good  faith  to  be  observed  between  them. 

Sec.  2411.  In  all  proceedings  connected  wdth  the  formation,  conduct,  disso- 
lution, and  liquidation  of  a  joartnership,  every  partner  is  bound  to  act  in  the 
highest  good  faith  toward  his  cojDartners.  He  may  not  obtain  any  advantage 
over  them  in  the  partnership  affairs  by  the  slightest  misrepresentation,  con- 
cealment, threat,  or  adverse  pressure  of  any  kind. 

7412.  Mutual  liability  of  partners  to  account. 

Sec.  2412.  Each  member  of  a  partnership  must  account  to  it  for  even'thing 
that  he  receives  on  account  thereof,  and  is  entitled  to  reimbursement  therefrom 
for  everything  that  he  proj^erly  expends  for  the  benefit  thereof,  and  to  be  in- 
demnified thereby  for  all  losses  and  risks  which  he  necessarily  incurs  on  its 
behalf. 

7413.  No  compensation  for  services  to  firm. 

Sec.  2413.  A  partner  is  not  entitled  to  any  compensation  for  services  rendered 
by  him  to  the  partnership. 

ARTICLE  IV. 

RENUNCIATION    OF    PARTNERSHIP. 

7417.  Renunciation  of  future  profits  exonerates  from  liahiWy. 

Sec  2417.  A  partner  may  exonerate  himself  from  all  future  liability  to  a  third 
person,  on  account  of  the  partnership,  by  renouncing,  in  good  faith,  all  partici- 
pation in  its  future  profits,  and  giving  notice  to  such  third  person,  and  to  his 
own  copartners,  that  he  has  made  such  renunciation,  and  that,  so  far  as  may  be 
in  his  power,  he  dissolves  the  partnership  and  does  not  intend  to  be  liable  on 
account  thereof  for  the  future. 

811 


7418-7431  Cn^IL  CODE. 

7418.  Effect  of  renunciation. 

Sh:c.  2418.  After  a  partner  bas  given  notice  of  bis  renunciation  of  the  jiartner- 
sliip,  lie  cannot  claim  any  of  its  subsequent  profits,  and  his  copartners  may  pro- 
ceed to  dissolve  the  partnership. 

CHAPTER  II. 

GENERAL    PARTNERSHIP. 

Article  I.  "What  is  a  Gknkral  Partnership  7424 

II.  Powers  and  Authority  of  Partners 7428 

III.  Mutual  Obligations  of  Partners 7435 

IV.  Liability  of  Partners 7442 

V.  Termination  of  Partnership 7449 

TI.  Liquidation 7458 

"\^I .  Of  the  Use  of  Fictitious  Names 74G6 

ARTICLE  I. 

WHAT    IS    A    GENEK.\L    PARTNEKSHIP. 

7424.   General  partnership,  what. 

Sec.  2424.  Every  i)ai"tnership  that  is  not  fonned  in  accordance  with  the  law 
concerning  special  or  mining  partnerships,  and  every  sj)ecial  partnership,  so  far 
only  as  the  general  jjartners  are  concerned,  is  a  general  partnership. 

ARTICLE   II. 

POWERS    AND    AUTHORITY    OF    PARTNERS. 

7428.  Poicer  of  majority  ofjxirtners. 

Sec.  2428.  Unless  othenvise  expressly  stipulated,  the  decision  of  the  majority 
of  the  members  of  a  general  XDartnershij)  binds  it  in  the  conduct  of  its  business. 

7429.  Authority  of  individual  partner. 

Sec  2429.  Every  general  partner  is  agent  for  the  partnership)  in  the  transac- 
tion of  its  business,  and  has  authority  to  do  whatever  is  necessary  to  carry  on 
such  business  in  the  ordinary  manner,  and  for  this  purpose  may  bind  his  co- 
partners by  an  agreement  in  writing. 

7430.  What  authority  pjartner  has  not. 

Sec.  2430.  A  partner,  as  such,  has  not  authority  to  do  any  of  the  following 
acts,  unless  his  copartners  have  wholly  abandoned  the  business  to  him,  or  are 
incapable  of  acting: 

1.  To  make  an  assignment  of  the  partnershiii  property  or  any  portion  thereof 
to  a  creditor,  or  to  a  third  person  in  trust  for  the  benefit  of  a  creditor  or  of  all 
creditors; 

2.  To  dispose  of  the  good  will  of  the  business; 

3.  To  dispose  of  the  whole  of  the  partnership  property  at  once,  unless  it 
consists  entirely  of  merchandise; 

4.  To  do  any  act  which  would  make  it  impossible  to  carry  on  the  ordinary 
business  of  the  partnership; 

5.  To  confess  a  judgment; 

6.  To  submit  a  partnershii)  claim  to  arbitration; 

7.  To  do  any  other  act  not  within  the  scope  of  the  i:)receding  section. 

7431.  Partner's  acAs  in  bad  faith,  tcJien  inpffectaal. 

Sec.  2431.  A  partner  is  not  bound  by  any  act  of  a  copartner,  in  bad  faith 
toward  him,  though  witliin  the  scope  of  the  partner's  powers,  excej^t  in  favor 
of  persons  who  have  in  good  faith  parted  with  value  in  reliance  upon  such  act. 

812 


PARTNERSHIP,  7435-7450 

ARTICLE  III. 

MUTUAL    OBLIOATIONS    OF   PARTNEHS, 

7435 .  Profits  of  individual  partner. 

Sec,  2435.  All  profits  made  by  a  general  partner,  in  the  eoui-se  of  any  busi- 
ness usually  carried  on  by  the  partnership,  belong  to  the  firm. 

7436.  In  ivhat  b2isiness  partner  viay  not  engage. 

Sec.  2436.  A  general  j^artner,  who  agrees  to  give  his  personal  attention  to 
the  business  of  the  i^artnership,  may  not  engage  in  any  business  -which  gives 
him  an  interest  adverse  to  that  of  the  partnership,  or  which  prevents  him  from 
giving  to  such  business  all  the  attention  Avhich  would  be  advantageous  to  it. 

7437.  In  what  he  may  engage. 

Sec.  2437,  A  partner  may  engage  in  any  separate  business,  except  as  othor- 
wdse  provided  by  the  last  two  sections. 

7438.  llust  account  to  firm  for  profds. 

Sec.  2438.  A  general  partner  transacting  business  contrary  to  the  provisions 
of  this  article  may  be  required  by  any  copartner  to  account  to  the  partiiership 
for  the  profits  of  such  business, 

ARTICLE  IV, 

LIABILITY    OF    PAKTNEES, 

7442,  Liability  of  partners  to  third  persons. 

Sec,  2442.  Every  general  partner  is  liable  to  third  persons  for  all  the  obliga- 
tions of  the  paitnership,  jointly  with  his  copartners. 

7443,  Liability  for  each  other's  acts  as  agents. 

Sec  2443.  The  liability  of  general  partners  for  each  other's  acts  is  defined  by 
the  title  on  agency. 

7444,  Liability  of  one  held  out  as  partner. 

Sec  2444,  Any  one  permitting  himself  to  be  represented  as  a  partner, 
general  or  special,  is  liable,  as  such,  to  third  persons  to  whom  such  representa- 
tion is  communicated,  and  who,  on  the  faith  thereof,  give  credit  to  the  partner- 
ship, 

7445,  No  one  liable  as  partner  unless  held  out  as  such. 

Sec  2445.  No  one  is  liable  as  a  partner  who  is  not  such  in  fact,  except  as 
provided  in  the  last  section. 

ARTICLE  V, 

TERMINATION    OF    PARTNERSHIP. 

7449.  Duration  of  partnership. 

Sec  2449.  If  no  term  is  prescribed  by  agreement  for  its  duration,  a  general 
loartnership  continues  until  dissolved  by  a  partner  or  by  operation  of  law. 

7450.  Total  dissolution  ofpaiinership. 

Sec  2450.  A  general  partnership  is  dissolved  as  to  all  the  partners: 

1.  By  lapse  of  the  time  prescribed  by  agreement  for  its  duration; 

2.  By  the  expressed  will  of  any  partner,  if  there  is  no  such  agreement; 

3.  By  the  death  of  a  partner; 

4.  By  the  transfer  to  a  person,  not  a  partner,  of  the  interest  of  any  partner 
in  the  partnership  j)roperty; 

5.  By  war,  or  the  prohibition  of  commercial  intercourse  between  the  country 
in  which  one  partner  resides  and  that  in  which  another  resides;  or, 

6.  By  a  judgment  of  dissolution, 

813 


7451-7462  CIVIL  CODE. 

7451.  Partial  dissolution. 

Sec.  2451.  A  general  partnersliip  may  be  dissolved,  as  to  himself  only,  by 
the  expressed  will  of  any  partner,  notwithstanding  his  agreement  for  its  contin- 
uance, subject  however  to  liability  to  his  copartners  for  any  damage  caused  to 
them  thereby,  unless  the  circumstances  are  such  as  entitle  him  to  a  judgment  of 
dissolution. 

7452.  Partner  entitled  to  dissolution. 

Sfx.  2452.  A  general  partner  is  entitled  to  a  judgment  of  dissolution; 

1.  "When  he,  or  another  partner,  becomes  legally  incapable  of  contracting; 

2.  "When  another  partner  fails  to  perfomi  his  duties  under  the  agreement  of 
partnership,  or  is  guilty  of  serious  misconduct;  or, 

3.  "When  the  business  of  the  partnership  can  be  carried  on  only  at  a  perma- 
nent loss. 

7453.  Xotice  of  termination. 

Sec.  2453.  The  liability  of  a  general  partner  for  the  acts  of  his  copartners 
continues,  even  after  a  dissolution  of  the  copartnership,  in  favor  of  jDersous  who 
have  had  dealings  with  and  given  credit  to  the  partnership  during  its  existence, 
until  they  have  had  personal  notice  of  the  dissolution;  and  in  favor  of  other 
pei"sons  until  such  dissolution  has  been  advertised  in  a  newspaper  published  in 
every  county  where  the  jDartnership,  at  the  time  of  its  dissolution,  had  a  jjlace 
of  business,  if  a  newsjDaper  is  there  published,  to  the  extent  in  either  case  to 
which  such  persons  part  with  value  in  good  faith,  and  in  the  belief  that  such 
l)artner  is  still  a  member  of  the  firm. 

7454.  Xotice  by  change  of  name. 

Sec  2454.  A  change  of  the  partnership  name,  M'hich  plainly  indicates  the 
withdrawal  of  a  partner,  is  sufficient  notice  of  the  fact  of  such  withdrawal  to  all 
persons  to  whom  it  is  communicated;  but  a  change  in  the  name,  which  does 
not  contain  such  an  indication,  is  not  notice  of  the  withdrawal  of  any  partner. 

AKTICLE  VI. 

LIQUIDATION. 

7458.  Powers  of  partners  after  dissolution. 

Sec  2458.  After  the  dissolution  of  a  partnership),  the  powers  and  authority  of 
the  partners  are  such  only  as  are  prescribed  by  this  article. 

7459.  WJio  may  act  in  liquidation. 

Sec  2459.  Any  member  of  a  general  partnership  may  act  in  liquidation  of  its 
affairs,  except  as  jirovided  by  the  next  section. 

7460.  Wlio  may  not  act  in  liquidation. 

Sec  24G0.  If  the  liquidation  of  a  partnership  is  committed,  by  consent  of  all 
the  partners,  to  one  or  more  of  them,  the  others  have  no  right  to  act  therein; 
but  their  acts  are  valid  in  favor  of  persons  parting  with  value,  in  good  faith, 
ui^on  credit  thereof. 

7461.  Poimrs  of  partners  in  liquidation. 

Sec  2401.  A  partner  authorized  to  act  in  liquidation  may  collect,  compromise, 
or  release  any  debts  due  to  the  partnership,  pay  or  compromise  any  claims 
against  it,  and  dispose  of  the  partnership  property. 

7462.  IVhat  partner  may  do  in  liquidation. 

Sec  2402.  A  partner  authorized  to  act  in  liquidation,  may  indorse,  in  the 
name  of  the  firm,  promissory  notes,  or  other  obligations  held  by  the  partnership, 
for  the  i)urpose  of  collecting  tljc  same,  but  he  cannot  create  any  new  obligation 
in  its  name,  or  revive  a  debt  against  the  firm,  by  an  acknowledgment  when  an 

814 


PARTNERSHIP.  74G2-74G9 

action  thereon  is  barred  under  the  provisions  of  the  Code  of  Civil  Procedure. 

[Amendmcni,  approved  March  30, 1874;  ^l»i('/((///(('»(/.s  1873-4,  252;  louk  <-(/)vlJiili/l 
1874.'" 

ARTICLE  VII. 

OF    THE    USE    OF   FICTITIOUS    NAMES. 

7466.  Partnership,  under  fictitious,  name. 

Sec.  24GG.  Excejjt  as  otherwise  provided  in  the  next  section,  every  partner- 
ship transacting-  business  in  this  state  under  a  fictitious  name,  or  a  designation 
not  showing  the  names  of  the  persons  interested  as  pjirtuers  in  such  business, 
must  file  with  the  clerk  of  the  county  in  which  its  principal  place  of  business  is 
situated,  a  certificate  stating  the  names  in  full  of  all  the  members  of  such  part- 
nership and  their  ^^laces  of  residence,  and  publish  the  same  once  a  week  for 
four  successive  weeks,  in  a  newspaper  published  in  the  county,  if  there  be  one, 
and  if  there  be  none  in  such  county,  then  in  a  newspaper  published  in  an 
adjoining  county.  [Amendment,  approved  March  30,  1874;  Amendments  1873-4, 
253;  took  effect  Juhj  1,  1874.^''> 

7467.  Foreign  partnerships. 

Sec.  24G7.  A  commercial  or  banking  partnership,  established  and  transact- 
ing business  in  a  place  without  the  United  States,  may,  without  filing  the  cer- 
tificate, or  making  the  publication  prescribed  in  the  last  section,  use  in  this  state 
the  partnership  name  used  by  it  there,  although  it  be  fictitious,  or  does  not  show 
the  names  of  the  persons  interested  as  partners  in  such  business.  [Amendment, 
approved  March  80,  1874;  Amendments  1873-4,  253;  took  eff'ect  July  1,  1874.*'^ 

7468.  Certificate  of  partnership  to  he  filed. 

Sec.  24G8.  The  certificate  filed  with  the  clerk,  as  provided  in  section  twenty- 
four  hundred  and  sixty-six, -must  be  signed  by  the  partners,  and  acknowledged 
befoi'e  some  officer  authorized  to  take  the  acknowledgment  of  conveyances  of 
real  property.  Where  the  partnership  is  hereafter  formed,  the  certificate  must 
be  filed,  and  the  publication  designated  in  that  section  must  be  made  within  one 
mouth  after  the  formation  of  the  jDartnership,  or  Avithin  one  month  from  the 
time  designated  in  the  agreement  of  its  members  for  the  commencement  of  the 
partnership;  where  the  partnership  has  been  heretofore  formed,  the  certificate 
must  be  filed,  and  the  publication  made  within  six  months  after  the  passage  of 
this  act.  Persons  doing  business  as  partners  contrary  to  the  pi'OA-isious  of  this 
article,  shall  not  maintain  any  action  upon  or  on  account  of  an}'  contracts  made 
or  transactions  had  in  their  partnershii^  name,  in  any  court  of  this  state,  until 
they  have  first  filed  the  certificate  and  made  the  jjublication  herein  required. 
[Amendment,  approved  March  30,  1874;  Amendments  1873-4,  253;  took  effect 
July  1,  1874.^"^^ 

7469.  Neiu  certificate  required  on  change  of  partners. 

Sec.  24G9.  On  eveiy  change  in  the  members  of  a  partnership  transacting  busi- 
ness in  this  state  under  a  fictitious  name,  or  a  designation  which  does  not  show 
the  names  of  the  persons  interested  as  partners  in  its  business,  except  in  the 

(a)   Original  section:  (c)   Original  section:                                         .  v.,,  ^   ^ 

Sec.  246-2.  A  partner  authorized  to  act  in  liquidation  Sec.   24ti7.  A   commercial   partnership,   established 

may  enter,  in  the  name  of  the  firm,  into  any  obliga-  and  transacting  busimss  in  a  place  without  the  Imted 

tion,  by  way  of  satisfaction  of  a  partnership  debt,  or  as  States,  may  use  in   this  state  the  partnership  name 

a- collateral  security  therefor;  but   he   cannot   make,  used  by  it  there,  although  tictitiouB. 

draw,  or  indorse  any  other  obligation  in  its  name,  nor  (rf)  Original  section: 

revive  a  debt  against  the  firm,  by  any  acknowledg-  Sec.  24t)S.  The   name  of  a  partnership,  which   ba« 

ment,  -within  the   provisions   of   the   Code    of   Civil  had  business  relations  with  places  without  the  I  nlted 

Procedure  concerning  the  times  of  commencing  civil  States,  may  be  continued  in  use  by  the  persons  suc- 

actions.  ceeding  to  its  business,  and  by  their  successors,  upon 

(6)  Original  section-  compliance  with  the  provisions  of  this  article,  and 

Sec.24w>.  No   partnership   or  person  may  transact  with  the  consent  of  the  persons,  if  living,  whose  names 

business  by  a  fictitious  name,  or  in  the  name  of  a  jjer-  are  used, 
son  not  interested  in  such  business ,  except  as  prescribed 
in  this  article. 

815 


74G9-7480  CIVIL  CODE. 

cases  meutionecl  in  section  twenty-four  liunclrecl  and  sixty-seven,  a  new  certifi- 
cate must  be  filed  witli  the  county  clerk,  and  a  new  publication  made,  as  required 
by  this  article  on  the  formation  of  such  partnership.  [Amendment,  approved 
March  30,  1874;  Amendments  1873-4,  254;  took  effect  July  1,  1874/''> 

7470.  Register  of  firms  to  he  kept  by  county  clerk. 

Sec.  2470.  Everj'  county  clerk  must  keep  a  register  of  the  names  of  firms  and 
persons  mentioned  in  the  certificates  filed  with  him,  jiursuant  to  this  article, 
entering  in  alphabetical  order  the  name  of  every  such  partnership,  and  of  each 
partner  therein.  [Amendment,  approved  March  30,  1874;  Amendments  1873-4, 
254;  took  effect  July  1, 1874,^''> 

7471.  Certified  copies  of  register  and  proof  of  publication  to  be  evidence. 

Sec.  2471.  Copies  of  the  entries  of  a  county  clerk,  as  herein  directed,  when 
certified  by  him,  and  affidavits  of  publication,  as  herein  directed,  made  by  the 
printer,  publisher,  or  chief  clerk  of  a  newspaper,  are  presumptive  evidence  of 
the  facts  therein  stated. 

CHAPTEK  III. 

SPECIAL    PARTNERSHIP. 

Abticle  I.  Formation  of   Paetnekship 7477 

II.  PowEEs,  Rights,  and  Duties  of  the  Paetnees.  .    7489 

III.  Liability  of  Partnkes 7500 

IV.  Alteeation  and  Dissolution  of  the  Pabtnership 7507 

AKTICLE  I. 

FORMATION    OF    PARTNERSHIP. 

7477.  Formation  of  special  partnership. 

Sec.  2477.  A  special  partnership  may  be  formed  by  two  or  more  persons,  in 
the  manner  and  with  the  efl^ect  prescribed  in  this  chapter,  for  the  transaction  of 
any  business  except  banking  or  insurance. 

7478.  Of  ivhat  to  consist. 

Sec.  2478.  A  special  partnership  may  consist  of  one  or  more  persons  called 
general  jiartuers,  and  one  or  more  persons  called  special  partners. 

7479.  Certified  statement. 

Sect.  2479.  Persons  desirous  of  forming  a  sj)ecial  partnership  must  severally 
sign  a  certificate,  stating: 

1.  The  name  under  which  the  partnership  is  to  be  conducted; 

2.  The  general  nature  of  the -business  intended  to  be  transacted; 

3.  The  names  of  all  the  partners,  and  their  residences,  specifying  which  are 
general  and  which  are  special  partners; 

4.  The  amount  of  cai)ital  which  each  special  partner  has  contributed  to  the 
common  stock; 

5.  The  periods  at  which  such  partnership  will  begin  and  end. 

7480.  Acknowh'dyed  and  recorded. 

Sec  2480.  Certificates  under  the  last  section  must  be  acknowledged  by  all  the 
l^aiiners,  before  some  ofiicer  authorized  to  take  acknowledgment  of  deeds,  one  to 
be  filed  in  the  clerk's  ofi^ice,  and  the  other  recorded  in  the  office  of  the  recorder 

(a)  Original  gfction:  and  nmst  publish  such  rcrtificate,  or  a  statement  con- 
Sec.  240'.t.  Ou  evtry  change  of  the  porsons  continu-  taining  the  substance  thcicuf,  once  in  each  week  for 
ing  the  use  of  a  partnership  name,  under  the  last  sec-  four  successive  weeks,  beginning  within  one  week 
tioii,  the  person  acriuiring  the  right  to  iisc  it  must  sign  after  his  first  using  sui^h  name,  in  a  newspaper  printed 
and  acknowledf;e,  before  »  proper  ofiicer  for  that  pur-  in  the  county,  or  nearest  the  county  (if  noni'  is  printed 
pose,  a  cerliticate  stating  tlie  name  of  each  pers(jn  deal-  in  the  county)  in  which  such  principal  place  of  bust- 
ing under  such  nanii-,  and  liis  place  of  residence,  and  ness  is  situated. 

must  tile  the  same  with  the  clerk  of  the  county  in  {h)  The  original  section,  instead  of  "  this  article," 

which  their  principal  jdace  of  buBiness  is  situated;  had  the  words  "  the  last  section." 

816 


PARTNERSHIP.  7480-7492 

of  the  county  in  which  the  principal  place  of  business  of  the  partnership  is 
situated,  in  a  book  to  be  kept  for  that  purjiose,  open  to  public  inspection;  and 
if  the  partnership  has  places  of  business  situated  in  different  counties,  a  coi)y 
of  the  certificate,  certified  by  the  recorder  in  whose  office  it  is  recorded,  must 
be  filed  in  the  clerk's  office,  and  recorded  in  like  manner  in  the  office  of  the 
recorder  in  every  such  county.  If  any  false  statement  is  made  in  any  such 
certificate,  all  the  persons  interested  in  the  partnershiiJ  are  liable,  as  general 
partners,  for  all  the  engagements  thereof. 

7481.  Affidavit  as  to  sums  contributed. 

Sec.  2481.  An  affidavit  of  each  of  the  partners,  stating  that  the  sums  speci- 
fied in  the  certificate  of  the  partnershij)  as  having  been  contributed  by  ouch  of 
the  special  partners,  have  been  actually  and  in  good  faith  paid,  in  the  lawful 
money  of  the  United  States,  must  be  filed  in  the  same  office  with  the  original 
certificate. 

7482.  No  partnersliip  until  compliance. 

Sec  2482.  No  special  partnership  is  formed  until  the  provisions  of  the  last 
five  sections  are  complied  with. 

7483.  Certificate  to  he  published. 

Sec.  2483.  The  certificate  mentioned  in  this  article,  or  a  statement  of  its  sub- 
stance, must  be  published  in  a  newspaper  printed  in  the  county  where  the 
original  certificate  is  filed,  and  if  no  newspaper  is  there  printed,  then  in  a  news- 
paper in  the  state  nearest  thereto.  Such  publication  must  be  made  once  a  week 
for  four  successive  weeks,  beginning  within  one  week  from  the  time  of  filing  the 
certificate.  In  case  such  publication  is  not  so  made,  the  partnership  must  be 
deemed  general. 

7484.  Affidavit  of  publication  filed. 

Sec.  2484.  An  affidavit  of  the  making  of  the  publication  mentioned  in  the 
preceding  section,  made  by  the  printer,  publisher,  or  chief  clerk  of  the  news- 
paper in  which  such  publication  is  made,  may  be  filed  with  the  county  recorder 
with  whom  the  original  certificate  was  filed,  and  is  presumptive  evidence  of  the 
facts  therein  stated. 

7485.  Renewal  of  special  partnership. 

Sec.  2485.  Every  renewal  or  continuance  of  a  special  partnershij^  must  be 
certified,  recorded,  verified,  and  published  in  the  same  manner  as  upon  its 
original  formation. 

ARTICLE  II. 

POWERS,    RIGHTS,    AND    DUTIES    OF    THE    PARTNERS. 

7489.  Who  to  do  business. 

Sec  2489.  The  general  partners  only  have  authority  to  transact  the  business 
of  a  special  partnership, 

7490.  Special  partners  may  advise. 

Sec  24C0.  A  special  partner  may  at  all  times  investigate  the  partnership 
affairs,  and  advise  his  partners,  or  their  agents,  as  to  their  management. 

7491.  Hay  loan  money. 

Sec.  2491.  A  special  partner  may  lend  money  to  the  partnership,  or  advance 
money  for  it,  and  take  from  it  security  therefor,  and  as  to  such  loans  or  advances 
has  the  same  rights  as  any  other  creditor;  but  in  case  of  the  insolvency  of  the 
partnership,  all  other  claims  which  he  may  have  against  it  must  be  postponed 
until  all  other  creditors  are  satisfied. 

7492.  General  partners  may  sue  and  be  sued. 

Sec,  2492,  In  all  matters  relating  to  a  special  partnership,  its  general  partners 
52  817 


7492-7503  CIVIL  CODE. 

may  sue  and  be  sued  alone,  in  the  same  manner  as  if  there  were  no  special 
partners. 

7493.  Withdrawal  of  capital. 

Sec.  2493.  No  sjiecial  partner,  under  any  pretense,  may  withdraw  any  part  of 
the  cai^ital  invested  by  him  in  the  partnership,  during  its  continuance. 

7494.  Liierest  and  profits. 

Sec.  2494.  A  sjiecial  partner  may  receive  such  lawful  interest  and  such  pro- 
portion of  profits  as  may  be  agreed  upon,  if  not  paid  out  of  the  caj^ital  invested 
in  the  partnership  by  him,  or  by  some  other  special  partner,  and  is  not  bound 
to  refund  the  same  to  meet  subsequent  losses. 

7495.  Bct^nlt  of  icillidraicing  capital. 

Sec.  2495.  If  a  special  partner  withdraws  capital  from  the  firm,  contrary  to 
the  provisions  of  this  article,  he  thereby  becomes  a  general  partner. 

7496.  Preferential  transfer  void. 

Sec  249G.  Every  transfer  of  the  property  of  a  special  partnership,  or  of  a 
partner  therein,  made  after  or  in  contemplation  of  the  insolvency  of  such  part- 
nership or  partner,  with  intent  to  give  a  preference  to  any  creditor  of  such  part- 
nership or  partner  over  any  other  creditor  of  such  partnership,  is  void  against 
the  creditors  thereof;  and  every  judgment  confessed,  lien  created,  or  security 
given,  in  like  manner  and  with  the  like  intent,  is  in  like  manner  void. 

ARTICLE  III. 

LIABILITY    OF    PARTNERS. 

7500.  Liability  of  partners. 

Sec.  2500.  The  general  partners  in  a  special  partnership  are  liable  to  the  same 
extent  as  partners  in  a  general  partnership. 

7501.  Of  special  partners. 

Sec  2501.  The  contribution  of  a  special  partner  to  the  capital  of  the  firm, 
and  the  increase  thereof,  is  liable  for  its  debts,  but  he  is  not  otherwise  liable 
therefor   except  as  follows: 

1.  If  ne  has  Avillfully  made  or  permitted  a  false  or  materially  defective  state- 
ment in  the  certificate  of  the  partnership,  the  affidavit  filed  therewith,  or  the 
pul)lished  announcement  thereof,  he  is  liable,  as  a  general  partner,  to  all  cred- 
itors of  the  firm; 

2.  If  he  has  willfully  interfered  with  the  business  of  the  firm,  excei3t  as  per- 
mitted in  Article  II  of  this  chapter,  he  is  liable  in  like  manner;  or, 

3.  If  ho  has  willfully  joined  in  or  assented  to  an  act  contrary  to  any  of  the 
provisions  of  Article  II  of  this  chapter,  he  is  liable  in  like  manner. 

7502.  Liability  for  unintentional  act. 

Sec  2502.  "When  a  special  partner  has  unintentionally  done  any  of  the  acts 
mentioned  in  the  last  section,  he  is  liable,  as  a  general  partner;  to  any  creditor 
of  the  firm  who  has  been  actually  misled  thereby  to  his  prejudice. 

7503.  Who  may  qaeslion  existence  of  special  partnership . 

Sec.  2503.  One  who,  upon  making  a  contract  with  a  partnershii?,  accepts 
from  or  gives  to  it  a  written  memorandum  of  the  contract,  stating  that  the 
partnership  is  special,  and  giving  the  names  of  the  special  partners,  cannot 
afterwards  charge  tlie  persons  thus  named  as  general  partners  ujDon  that  con- 
tract, by  reason  of  an  error  or  defect  in  tlie  proceedings  for  the  creation  of  the 
special  partnership,  prior  to  the  acceptance  of  the  memorandum,  if  an  effort 
has  been  made  by  the  partners,  in  good  faith,  to  form  a  special  partnership  in 
the  manner  required  by  Article  I  of  this  chapter. 

818 


PAKTNERSHIP.  7507-7514 

AETICLE  IV. 

ALTERATION    AND    DISSOLUTION. 

7507.  When  special  partnership  becomes  general. 

Sec.  2507.  A  special  partnership  becomes  general  if,  within  ten  daj's  after 
any  partner  withdraws  from  it,  or  any  new  partner  is  received  into  it,  or  a 
change  is  made  in  the  nature  of  its  business  or  in  its  name,  a  certificate  of  such 
fact,  duly  verified  and  signed  by  one  or  more  of  the  i^artners,  is  not  filed  with 
the  county  clerk  and  recorder  with  whom  the  original  certificate  of  the  partner- 
ship was  filed,  and  notice  thereof  publislied  as  is  provided  in  Article  I  of  this 
chapter  for  the  publication  of  the  certificate. 

7508.  JBbiv  neio  special  partners  may  he  admitted. 

Sec.  2508.  New  special  partners  may  be  admitted  into  a  special  partnership 
upon  a  certificate,  stating  the  names,  residences,  and  contributions  to  the 
common  stock  of  each  of  such  jDartners,  signed  by  each  of  them,  and  by  the 
general  partners,  verified,  acknowledged,  or  proved,  according  to  the  provisions 
of  Article  I  of  this  chapter,  and  filed  with  the  county  clerk  and  recorder  with 
whom  the  original  certificate  of  the  partnership  was  filed. 

7509.  Dissolution  of  sptecial  partnership. 

Sec.  2509.  A  special  partnership  is  subject  to  dissolution  in  the  same  manner 
as  a  general  partnership,  except  that  no  dissolution,  by  the  act  of  the  partners, 
is  complete  until  a  notice  thereof  has  been  filed  and  recorded  in  the  office  of 
the  county  clerk  and  recorder  with  whom  the  original  certificate  was  recorded, 
and  published  once  in  each  week,  for  four  successive  weeks,  in  a  newspaper 
printed  in  each  county  where  the  partnership  has  a  place  of  business. 

7510.  The  name  of  a  special  partner  not  used,  xtnless. 

Sec.  2510.  The  name  of  a  special  partner  must  not  be  used  in  the  finn  name 
of  partnership,  unless  it  be  accompanied  Avith  the  word  "  limited." 

CHAPTER  IV. 

MINING  PARTNERSHIPS. 

7511.  When  a  mining  partnership  exists^. 

Sec.  2511.  A  mining  partnership  exists  when  two  or  more  persons  who  own 
or  acquire  a  mining  claim  for  the  purpose  of  working  it  and  extracting  the  min- 
eral therefrom  actually  engage  in  working  the  same. 

7512.  Express  agreement  not  necessary  to  constitute. 

Sec.  2512.  An  express  agreement  to  become  partners  or  to  share  the  profits 
and  losses  of  mining  is  not  necessary  to  the  formation  or  existence  of  a  mining 
partnership.  The  relation  arises  from  the  ownership  of  shares  or  interest  in  the 
mine  and  working  the  same  for  the  purpose  of  extracting  the  minerals  there- 
from. 

7513.  Profits  and  losses,  Jiow  shared. 

Sec.  2513.  A  member  of  a  mining  partnership  shares  in  the  profits  and  losses 
thereof  in  the  proportion  which  the  interest  or  share  he  owns  in  the  mine  bears 
to  the  whole  partnership  capital  or  whole  number  of  shares. 

7514.  Lien  of  partners. 

Sec.  2514.  Each  member  of  a  mining  partnership  has  a  lien  on  the  partner- 
ship property  for  the  debts  due  the  creditors  thereof,  and  for  money  advanced 
by  him  for  its  use.  This  lien  exists  notwithstanding  there  is  an  agreement 
among  the  partners  that  it  must  not. 

819 


7515-7520  CIVIL  CODE. 

7515.  Jline,  partnership  property. 

Skc.  2515.  The  miniug  ground  owned  and  worked  by  partners  in  mining, 
whether  jiurchased  with  partnership  funds  or  not,  is  jjartnership  property. 

7516.  rartner?hip  not  dissolved  by  sale  of  interest. 

Skc.  2516.  One  of  the  partners  in  a  mining-  partnership  may  convey  his  in- 
terest in  the  mine  and  business  without  dissolving  the  j^artnership.  The  pur- 
chaser, from  the  date  of  his  purchase,  becomes  a  member  of  the  partnership. 

7517.  Purchaser  takes,  subject  to  liens,  unless,  etc. 

Skc  2517.  A  purchaser  of  an  interest  in  the  mining  ground  of  a  mining 
partnership  takes  it  subject  to  the  liens  existing  in  favor  of  the  partners  for 
debts  due  all  creditors  thereof,  or  advances  made  for  the  benefit  of  the  partner- 
shij),  unless  he  jDurchased  in  good  faith,  for  a  valuable  consideration,  without 
notice  of  such  lien. 

7518  Takes  with  notice  of  lien,  when. 

Skc.  2518.  A  purchaser  of  the  interest  of  a  partner  in  a  mine  when  the  j)art- 
nership  is  engaged  in  working  it,  takes  with  notice  of  all  liens  resulting  from 
the  relation  of  the  partners  to  each  other  and  to  the  creditors  of  the  jDart- 
nership. 

7519.   Contract  in  writing,  when  binding. 

Skc.  2519.  No  member  of  a  mining  partnership  or  other  agent  or  manager 
thereof  can,  by  a  contract  in  writing,  bind  the  partnership,  except  by  express 
authority  derived  from  the  members  thereof. 

7520  Oivners  of  majority  of  shares  govern. 

Skc  2520.  The  decision  of  the  members  owning  a  majority  of  the  shares  or 
interests  in  a  mining  partnership  binds  it  in  the  conduct  of  its  business. 


TITLE   XI. 

$\m\vmtt. 

Chapter    I.  Insurance  in  General " 7527 

II.  Marine  Insurance 7655 

III.  Fire  Insurance 7752 

rV.  Lite  and  Health  Insurance 7762 


CHAPTER  I. 

INSURANCE   IN   GENERAL. 

ARTICLE      I.  Dkfinition  OF  Insubanck 7527 

II.  What  mai  be  Insobed 7531 

III.  pAKiiKS 7538 

IV.  Insubaule  Intekkpt 7546 

V.    CoNCKAI.MKNT    AST)   RkIBKKENTATION 75G1 

VI.  The  Policy 7586 

VII.  Wakhantieb 7G03 

VIII.  Pbkmiumh 7616 

IX.  Lo8H 7026 

X.  Notice  of  Lokh 7033 

XI.  Double  Inhubance 7641 

XII .  Reinsubanck 7646 

820 


INSUEANCE.  7527-7542 

ARTICLE  I. 

DEFINITION    OF    INSURANCE. 

7527.  Insurance,  what. 

Sec.  2527.  Insurance  is  a  contra(-t  whereby  one  undertakes  to  iiideninify 
another  against  loss,  damage,  or  Hability,  arising  fi'om  an  unknown  or  contin- 
gent event. 

ARTICLE  II. 

WHAT   MAY   BE   INSURED. 

7531.  What  events  may  he  insured  against. 

Sec.  2531.  Any  contingent  or  unknown  event,  whether  past  or  future,  which 
may  damnify  a  person  having  an  insurable  interest,  or  create  a  liability  against 
him,  may  be  insured  against,  subject  to  the  jDrovisions  of  this  chapter. 

7532.  Insurance  of  lottery  or  lottery  prize  unauthorized. 

Sec  2532.  The  preceding  section  does  not  authorize  an  insurance  for  or 
against  the  drawing  of  any  lottery,  or  for  or  against  any  chance  or  ticket  in  a 
lottery  drawing  a  prize. 

7533.  Usual  kinds  of  insurance. 

Sec.  2533.  The  most  usual  kinds  of  insurance  are : 

1.  Marine  insurance, 

2.  Fire  insurance; 

3.  Life  insurance; 

4.  Health  insurance;  and 

5.  Accident  insurance. 

7534.  All  subject  to  this  chapter. 

Sec  2534.  All  kinds  of  insurance  are  subject  to  the  provisions  of  this  chapter 

ARTICLE  III. 

parties  to  the  contract. 

7538.  Designation  of  parties. 

Sec  2538.  The  person  who  undertakes  to  indemnify  another  by  a  contract  of 
insurance  is  called  the  insurer,  and  the  person  indemnified  is  called  the  insured. 

7539.  Who  may  insure. 

Sec  2539.  Any  one  capable  of  making  a  contract  may  be  an  insurer,  subject 
to  the  restrictions  imposed  by  special  statutes  upon  foreign  corporations,  non- 
residents, and  others. 

7540.  Who  may  be  insured. 

Sec  2540.  Any  one  except  a  public  enemy  may  be  insured. 

7541.  Assignment  to  mortgagee  of  thing  insured. 

Sec  2541.  Where  a  mortgagor  of  property  effects  insurance  in  his  own  name, 
providing  that  the  loss  shall  be  payable  to  the  mortgagee,  or  assigns  a  policy  of 
insurance  to  the  mortgagee,  the  insurance  is  deemed  to  be  upon  the  interest  of 
the  mortgagor,  who  does  not  cease  to  be  a  party  to  the  original  contract,  and 
any  act  of  his  which  would  othei-wise  avoid  the  insurance  will  have  the  same 
effect,  although  the  property  is  in  the  hands  of  the  mortgagee. 

7542.  Neiv  contract  between  insurer  and  assignee. 

Sec  2542.  If  an  insurer  assents  to  the  transfer  of  an  insurance  from  a  mort- 
gagor to  a  mortgagee,  and,  at  the  time  of  his  assent,  imposes  further  obliga- 
tions on  the  assignee,  making  a  new  contract  with  him,  the  acts  of  the  mortgagor 
cannot  affect  his  rights. 

821 


754G-7o57  CIVIL  CODF. 

ARTICLE  IV. 

IN'SUKABLE    INTEKEST. 

7546.  Insurable  interest,  ichat. 

Sec.  2546.  Every  interest  in  property,  or  any  relation  thereto,  or  liability  in 
respect  thereof,  of  such  a  nature  that  a  contemplated  jDeril  might  directly  dam- 
nify the  insured,  is  an  insurable  interest. 

7547.  In  what  may  consist. 

Sec.  2547.  An  insurable  interest  in  property  may  consist  in: 

1.  An  existing-  interest; 

2.  An  inchoate  interest  founded  on  an  existing  interest;  or, 

3.  An  expectancy,  coui)led  with  an  existing  interest  in  that  out  of  which  the 
expectancy  arises. 

7548.  Interest  of  carrier  or  depositary. 

Sec.  2548.  A  carrier  or  depositary  of  any  kind  has  an  insurable  interest  in  a 
thing  held  by  him  as  such,  to  the  extent  of  its  value. 

7549.  3Ie7'e  expectancies. 

Sec  2549.  A  mere  contingent  or  expectant  interest  in  anything,  not  founded 
on  an  actual  right  to  the  thing,  nor  ujDon  any  valid  contract  for  it,  is  not  in- 
surable. 

7550.  Measure  of  interest  in  property. 

Sec.  2550.  The  measure  of  an  insurable  interest  in  property  is  the  extent  to 
which  the  insured  might  be  damnified  by  loss  or  injury  thereof. 

7551.  Insurance  icithout  interest,  illegal. 

Sec  2551.  The  sole  object  of  insurance  is  the  indemnity  of  the  insured,  and 
if  he  has  no  insurable  interest  the  contract  is  void. 

7552.  When  interest  must  exist. 

Sec.  2552.  An  interest  insured  must  exist  when  the  insurance  takes  e£fect,  and 
when  the  loss  occurs,  but  need  not  exist  in  the  meantime. 

7553.  Effect  of  transfer. 

Sec  2553.  Except  in  the  cases  specified  in  the  next  four  sections,  and  in  the 
cases  of  life,  accident,  and  health  insurance,  a  change  of  interest  in  any  part  of 
a  thing  insured,  unaccompanied  by  a  corresponding  change  of  interest  in  the 
insurance,  susi:)ends  the  insurance  to  an  equivalent  extent,  until  the  interest  in 
the  thing  and  the  interest  in  the  insurance  are  vested  in  the  same  person. 

7554.  Transfer  after  loss. 

Sec.  2554.  A  change  of  interest  in  a  thing  insured,  after  the  occurrence  of  an 
injury  wliich  results  in  o  loss,  does  not  affect  the  right  of  the  insured  to  indem- 
nity for  the  loss. 

7555.  Exnption  in  the  case  of  several  subjects  in  one  policy. 

Sec  2555.  A  change  of  interest  in  one  or  more  of  several  distinct  things, 
separately  insured  by  one  jiolicy,  does  not  avoid  the  insurance  as  to  the  others. 

7556.  In  case  of  the  deatli  of  the  insurer. 

Sec  2550.  A  change  of  interest,  by  will  or  succession,  on  the  death  of  the 
insured,  does  not  avoid  an  insurance;  and  his  interest  in  the  insurance  j^assesto 
the  person  taking  his  interest  in  the  thing  insured. 

7557.  In  the  case  of  transfer  heticeen  co-tenants. 

Sec  2557.  A  transfer  of  interest  by  one  of  several  partners,  joint  owners,  or 
owners  in  common,  who  are  jointly  insured,  to  the  others,  does  not  avoid  an 
insurance,  even  tliougli  it  has  been  agreed  that  the  insurance  shall  cease  ujwn 
an  alienation  of  the  thing  insured. 

822 


INSITRANCE.  7558-75G8 

7558.  Policy  of  insurance,  when  void. 

Sec.  2558.  Every  stipulation  in  a  policy  of  insurance  for  tlie  payment  of  loss, 
whether  the  person  insured  has  or  has  not  any  interest  in  the  projierty  insured, 
or  that  the  policy  shall  be  received  as  proof  of  such  interest,  and  eveiy  policy 
executed  by  way  of  gaming  or  wagering,  is  void.  [Nexo  section ,  approved  2Iarch 
30,  1874;  Amendments  1873-4,  255;  took  efect  July  1,  1874. 

ARTICLE  V. 

CONCEALMENT   AND    REPBESENTATI0N8, 

7561.  Concealment,  tvhat. 

Sec.  25G1.  A  neglect  to  communicate  that  which  a  party  knows,  and  ought  to 
communicate,  is  called  a  concealment. 

7562.  Effect  of  concealment. 

Sec.  2562.  A  concealment,  whether  intentional  or  unintentional,  entitles  the 
injured  party  to  rescind  a  contract  of  insui'auce. 

7563.  What  must  he  disclosed. 

Sec.  2563.  Each  party  to  a  contract  of  insurance  must  communicate  to  the 
other,  in  good  faith,  all  facts  within  his  knowledge  which  are  or  which  he  be- 
lieves to  be  material  to  the  contract,  and  which  the  other  has  not  the  means  of 
ascertaining,  and  as  to  which  he  makes  no  warranty. 

7564.  Matters  which  need  not  be  communicated  loithout  inquiry. 

Sec.  2564.  Neither  party  to  a  contract  of  insurance  is  bound  to  communicate 
information  of  the  matters  following,  except  in  answer  to  the  inquiries  of  the 
other: 

1.  Those  which  the  other  knows; 

2.  Those  which,  in  the  exercise  of  ordinary  care,  the  other  ought  to  know, 
and  of  which  the  former  has  no  reason  to  supypose  him  ignorant; 

3.  Those  of  which  the  other  waives  communication; 

4.  Those  which  prove  or  tend  to  prove  the  existence  of  a  risk  excluded  by  a 
warranty,  and  which  are  not  otherwise  material;  and, 

5.  Those  which  relate  to  a  risk  excepted  from  the  policy,  and  which  are  not 
otherwise  material. 

7565.  Test  of  materiality. 

Sec  2565.  Materiality  is  to  be  determined  not  by  the  event,  but  solely  by  the 
probable  and  reasonable  influence  of  the  facts  upon  the  party  to  whom  the  com- 
munication is  due,  in  forming  his  estimate  of  the  disadvantages  of  the  proposed 
contract,  or  in  making  his  inquiries. 

7566.  Matters  ivhich  each  is  bound  to  know. 

Sec  2566.  Each  party  to  a  contract  of  insurance  is  bound  to  know  all  the 
general  causes  which  are  open  to  his  inquiry,  equally  with  that  of  the  other,  and 
which  may  affect  either  the  political  or  mateiial  perils  contemp)lated;  and  all 
general  usages  of  trade. 

7567.  Waiver  of  communication. 

Sec  2567.  The  right  to  information  of  material  facts  may  be  waived,  either 
by  the  terms  of  insurance  or  by  neglect  to  make  inquiries  as  to  such  facts, 
where  they  are  distinctly  implied  in  other  facts  of  which  information  is  com- 
municated. 

7568.  Interest  of  insured. 

Sec  2568.  Information  of  the  nature  or  amount  of  the  interest  of  one  insured 
need  not  be  communicated  unless  in  ausAver  to  an  inquiry,  except  as  prescribed 
by  section  2587. 

823 


7569-7583  CIVIL  CODE. 

7569.  Fraudulent  xi-arranty. 

Sec.  25G9.  An  iuteutional  and  fraudulent  omission,  on  the  part  of  one  in- 
sured, to  communicate  information  of  matters  proving  or  tending  to  prove  the 
falsity  of  a  warranty,  entitles  the  insurer  to  rescind. 

7570.  JiMters  of  opinion. 

Sec  2570.  Neither  i:)art3^  to  a  contract  of  insurance  is  bound  to  communicate, 
even  upon  inquiry,  information  of  his  own  judgment  upon  the  matters  in  ques- 
tion. 

7571.  Representation,  what. 

Sec.  2571.  A  representation  may  be  oral  or  written. 

7572.  When  made. 

Sec  2572.  A  representation  may  be  made  at  the  same  time  with  issuing  the 
policy,  or  before  it. 

7573.  Hoiv  interpreted. 

Sec  2573.  The  language  of  a  representation  is  to  be  interpreted  by  the  same 
rules  as  the  language  of  contracts  in  general. 

7574.  Representation  as  to  future. 

Sec  2574.  A  representation  as  to  the  future  is  to  be  deemed  a  promise, 
unless  it  appears  that  it  was  merely  a  statement  of  belief  or  expectation. 

7575.  Hot'- may  a  feet  policy. 

Sec  2575.  A  representation  cannot  be  allowed  to  qualify  an  express  pro- 
vision in  a  contract  of  insurance;  but  it  may  qualif}^  an  implied  warranty. 

7576.  Wheti  may  be  withdrawn. 

Sec.  257G.  A  representation  may  be  altered  or  withdrawn  before  the  insur- 
ance is  effected,  but  not  afterwards. 

7577.  Time  intended  by  representation. 

Sec  2577.  The  completion  of  the  contract  of  insurance  is  the  time  to  which  a 
representation  must  be  presumed  to  refer. 

7578.  Representing  information. 

Sec  2578.  "When  a  person  insured  has  no  personal  knowledge  of  the  fact,  he 
may  nevertheless  rej^eat  information  which  he  has  upon  the  subject,  and  Avhich 
he  believes  to  be  true,  with  the  explanation  that  he  does  so  on  the  infoiTnation 
of  others,  or  he  may  submit  the  information,  in  its  whole  extent,  to  the  insurer; 
and  in  neither  case  is  he  responsible  for  its  truth,  unless  it  proceeds  from  an 
agent  of  the  insured,  whose  duty  it  is  to  give  the  intelligence. 

7579.  Falsity. 

Sec  2579.  A  representation  is  to  be  deemed  false  when  the  facts  fail  to  cor- 
respond with  its  assertions  or  stipulations. 

7580.  Effect  of  falsity. 

Sec  2580.  If  a  representation  is  false  in  a  material  i:)oint,  whether  affinnative 
or  promissory,  the  injured  party  is  entitled  to  rescind  the  contract  from  the 
time  when  the  representation  becomes  false. 

7581.  Materiality. 

Si;c.  2581.  The  materiality  of  a  reiDresentation  is  detennined  by  the  same  i-ule 
as  the  materiality  of  a  concealment. 

7582.  Appliralion  of  provviions  of  this  article. 

Si  c.  2o82.  The  provisions  of  this  article  api:)]y  as  well  to  a  modification  of  a 
contract  of  insurance^as  to  its  original  foi-mation. 

7583.  RirjIU  to  rescind,  v-hen  exercised. 

Sec  2583.  Whenever  a  right  to  rescind  a  contract  of  insurance  is  given  to  the 

824 


INSUEANCE.  7583-7597 

insurer  by  any  provision  of  this  chapter  sucli  right  may  be  exercised  at  any  time 
previous  to  the  commencement  of  an  action  on  the  contract.  [Ncrc  srrtion, 
approved  March  30,  1874;  Amendments  1873-4,  255;  took  effect  July  1,  1874. 

ARTICLE  VI. 

THE    POLICY. 

7586.  PolicT/,  ivhat. 

Sec.  2586.  The  written  instrument,  in  which  a  contract  of  insurance  is  set 
forth,  is  called  a  policy  of  insurance. 

7587.  What  must  be  specified  in  a  polici/. 

Sec.  2587.  A  jDolicy  of  insurance  must  specify: 

1.  The  parties  between  whom  the  contract  is  made; 

2.  The  rate  of  premium; 

3.  The  property  or  life  insured; 

4.  The  interest  of  the  insured  in  property  insured,  if  he  is  not  the  absolute 
owner  thereof; 

5.  The  risks  insured  against;  and, 

6.  The  period  during  which  the  insurance  is  to  continue. 

7588.  Wliose  interest  is  covered. 

Sec.  2588.  When  the  name  of  the  person  intended  to  be  insured  is  specified 
in  a  policy,  it  can  be  applied  only  to  his  own  proper  interest. 

7589.  Insurance  by  agent  of  trustee. 

Sec.  2589.  When  an  insurance  is  made  by  an  agent  or  trustee,  the  fact  that 
his  princijDal  or  beneficiary  is  the  person  really  insured  may  be  indicated  by 
describing  him  as  agent  or  trustee,  or  by  other  general  words  in  the  pohcy. 

7590.  Insurance  by  part  oivner. 

Sec.  2590.  To  render  an  insurance,  effected  by  one  partner  or  part  owner, 
applicable  to  the  interest  of  his  coj)artners,  or  of  other  part  owners,  it  is  neces- 
sary that  the  terms  of  the  policy  should  be  such  as  are  applicable  to  the  joint 
or  common  intei'est. 

7591.  General  terms. 

Sec  2591.  When  the  description  of  the  insured  in  a  policy  is  so  general  that 
it  may  comj^rehend  any  person  or  any  class  of  persons,  he  only  can  claim  the 
benefit  of  the  policy  who  can  show  that  it  was  intended  to  include  him. 

7592.  Successive  oivners. 

Sec  2592.  A  policy  may  be  so  framed  that  it  will  inure  to  the  benefit  of  whom- 
soever, during  the  continuance  of  the  risk,  may  become  the  owner  of  the  interest 
insured. . 

7593.  Transfer  of  the  thing  insured. 

Sec  2593.  The  mere  transfer  of  a  thing  insiu-ed  does  not  transfer  the  policy, 
but  suspends  it  until  the  same  person  becomes  the  owner  of  both  the  policy 
and  the  thing  insui'ed. 

7594.  Open  and  valued  policies. 

Sec  2594.  A  policy  is  either  open  or  valued. 

7595.  Open  policy,  what. 

Sec  2595.  An  open  policy  is  one  in  which  the  value  of  the  thing  insured  is 
not  agreed  upon,  but  is  left  to  be  ascertained  in  case  of  loss. 

7596.  Valued  policy ,  tvhat. 

Sec  2596.  A  valued  policy  is  one  which  expresses  on  its  face  an  agreement 
that  the  thing  insured  shall  be  valued  at  a  specified  sum. 

7597.  Banning  policy,  ivhat. 

Sec  2597.  A  running  policy  is  one  which  contemplates  successive  insurances, 

825 


7597-7G11       .  CIYIL  CODE. 

and  which  provides  that  the  object  of  the  policy  may  be  from  time  to  time 
defined,  especially  as  to  the  sabjects  of  insurance,  by  additional  statements  or 
indorsements. 

7598.  Effect  of  receipt. 

Sec.  2598.  An  acknoAvledgment  in  a  j^olicy  of  the  receijit  of  premium  is  con- 
clusive evidence  of  its  payment,  so  far  as  to  make  the  policy  binding,  notwith- 
standing any  stipulation  therein  that  it  shall  not  be  binding  until  the  premium 
is  actually  paid. 

7599.  Agreement  not  to  transfer. 

Sec.  2599.  An  agreement  made  before  a  loss,  not  to  transfer  the  claim  of  a 
person  insxu-ed  against  the  insurer,  after  the  loss  has  haj)pened,  is  void. 

AETICLE  YII. 

WARRANTIES. 

7603.  Wnrranty,  expi'ess  or  implied. 

Sec.  2G03.  A  warranty  is  either  express  or  implied. 

7604.  Form. 

Sec.  2G04.  No  i:)articular  form  of  words  is  necessaiy  to  create  a  warranty. 

7605.  Wnrrantij  mud  he  in  policy. 

Sec  2005.  Every  express  warranty,  made  at  or  before  the  execution  of  a  pol- 
icy, must  be  contained  in  the  jDolicy  itself,  or  in  another  instrument  signed  by 
the  insured,  and  referred  to  in  the  policy,  as  making  a  part  of  it.  [Amend- 
ment, approved  March  30,  1874;  Amendments  1873-4,  255;  took  effect  July  1, 
1874.'^' 

7606.  Past,  present,  and  future  warranties. 

Sec.  2G06.  A  warranty  may  relate  to  the  past,  the  j)resent,  the  future,  or  to 
any  or  all  of  these. 

7607.  Wai'ranty  as  to  past  or  present. 

Sec  2G07.  A  statement  in  a  policy,  of  a  matter  relating  to  the  j^erson  or  thing 
insiu-ed,  or  to  the  risk,  as  a  fact,  is  an  exjjress  warranty  thereof. 

7608.  Warranty  as  to  the  future. 

Sec  2G08.  A  statement  in  a  policy,  which  imports  that  it  is  intended  to  do  or 
not  to  do  a  thing  which  materially  affects  the  risk,  is  a  warranty  that  such  act 
or  omission  shall  take  place. 

7609.  Performance  excused. 

Sec  2G09.  When,  before  the  time  arrives  for  the  perfonnance  of  a  warranty 
relating  to  the  future,  a  loss  insured  against  happens,  or  performance  becomes 
unlawful  at  the  place  of  the  contract,  or  impossible,  the  omission  to  fulfill  the 
warranty  does  not  avoid  the  policy.  [Amendment,  approved  3Iarch  30,  1874; 
Amendments  1873-4,  255;  took  effect  July  1,  1874.^''' 

7610.  What  acts  avoid  the  policy. 

Sec  2610.  The  violation  of  a  material  warranty,  or  other  material  jirovision 
of  a  policy,  on  the  part  of  either  j^arty  thereto,  entitles  the  other  to  rescind. 

7611.  Policy  may  provide  for  avoidance. 

Sec  2611.  A  policy  may  declare  that  a  violation  of  specified  provisions 
thereof  shall  avoid  it,  otherwise  the  breach  of  an  immaterial  provision  does  not 
avoid  the  policy. 

(a)  Original  section:  a  part  of  the  policy,  for  this  purpose,  even  by  agree- 

Sho.  2C0.').  Ev<'ry  exprf'BB  ■warranty,  made  at  or  liefore  meut  of  the  parties, 
the  execution  of  a  polii  y,  must  Ix^  criiitiiiij<:(l  iu  the  {h)  The  original  section  did  not  have  the  words  "  at 

policy  itself,  and  auothir  iustruineut,  whi-.thf-r  upon  the  place  of  the  contract." 
the  Bame  jjaper  or  uot  camiut  be  referred  to  as  making 

826 


INSURANCE.  7G12-7622 

7612.  Breach  without  fraud. 

Sec.  2G12,  A  breach  of  warranty,  witliout  fraud,  merely  exonerates  an  insurer 
from  the  time  that  it  occurs,  or  where  it  is  broken  in  its  inception  prevents  tbo 
policy  from  attaching  to  the  risk. 

ARTICLE  YIII. 

PREMIUM. 

7616.  When  premium  is  earned. 

Sec.  261G.  An  insurer  is  entitled  to  payment  of  the  premium  ii.s  soon  us  the 
thing  insured  is  exposed  to  the  peril  insured  against. 

7617.  Beturn  of  jJremium. 

Sec.  2617.  A  person  insured  is  entitled  to  a  return  of  premium  paid  as 
follows: 

1.  To  the  whole  premium,  if  no  part  of  his  interest  in  the  thing  insured  be 
exposed  to  any  of  the  j^erils  insured  against; 

2.  Where  the  insiu-ance  is  made  for  a  definite  period  of  time,  and  the  insured 
surrenders  his  policy,  to  such  proportion  of  the  premium  as  corresponds  with 
the  unexpired  time,  after  deducting  from  the  whole  premium  any  claim  for  loss 
or  damage  under  the  policy  which  has  jireviously  accnied.  [Amendment, 
ajyproved  March  30, 1874;  Amendments  1873-4,  256;  took  effect  July  1, 1874.^"' 

7618.  When  return  not  allowed. 

Sec.  2618.  If  a  peril  insured  against  has  existed,  and  the  insurer  has  been 
liable  for  any  period,  however  short,  the  insured  is  not  entitled  to  return  of 
premiums,  so  far  as  that  particular  risk  is  concerned.  [Amendment,  approved 
March  30,  1874;  Amendments  1873-4,  256;  took  effect  July  1,  1874.^"' 

7619.  Beturn  for  fraud. 

Sec.  2619.  A  person  insured  is  entitled  to  a  return  of  the  premium  when  the 
contract  is  voidable,  on  account  of  the  fraud  or  misreiDresentation  of  the  insurer, 
or  on  account  of  facts,  of  the  existence  of  Avhieh  the  insured  was  ignorant  with- 
out his  fault;  or  when,  by  any  default  of  the  insured  other  than  actual  fraud, 
the  insurer  never  incurred  any  liability  under  the  j)olicy. 

7620.  Over-insurance  by  several  insurer's. 

Sec.  2620.  In  case  of  an  over-insurance  by  several  insurers,  the  insured  is 
entitled  to  a  ratable  return  of  the  premium,  proportioned  to  the  amount  by 
which  the  aggregate  sum  insured  in  all  the  policies  exceeds  the  insurable  value 
of  the  thing  at  risk. 

7621.  Contribution. 

Sec.  2621.  When  an  over-insurance  is  effected  by  simultaneous  policies,  the 
insurers  contribute  to  the  premium  to  be  returned  in  proportion  to  the  amount 
insured  by  their  respective  policies. 

7622.  Broporfionate  contribution. 

Sec.  2622.  When  an  over-insurance  is  effected  by  successive  policies,  those 
only  contribute  to  a  return  of  the  premium  w^ho  are  exonerated  by  prior  insur- 
ances from  the  liability  assumed  by  them,  and  in  joroportion  as  the  sum  for 
which  the  premium  was  paid  exceeds  the  amount  for  which,  on  account  of 
prior  insurance,  they  could  be  made  liable. 

(a)   Original  section:  {!>)  The  original  pertion  had  the  fdllowinRsilflitlonnl 

Sec.  2617.  A  person  insured  is  entitled  to  a  return  of     clause:  "  unlisK  tbt' insurance  was  for  a  definite  period 
premium  paid,  or  a  ratable  proportion  thereof,  if  no     of  time, in  which  case  he  is  entitled  to  a  proi>ortionnte 
part  of  his  interest  in  the  thing  insured  is  exposed  to     return  under  the  preceding  section." 
any  of  the  perils  insured  against;  or,  -where  the  insur- 
ance is  made  for  a  definite  period  of  time,  if  it  is  not 
exposed  to  such  peril  for  the  whole  of  that  time. 

827 


7626-7 G37  CFV'IL  CODE. 

ARTICLE  IX. 

LOSS, 

'TSSS.   Pei'ils,  remote  and  proximate. 

Sec.  2626.  An  insurer  is  liable  for  a  loss  of  which  a  peril  insured  against  was 
the  proximate  cause;  although  a  peril  not  contemplated  b}'  the  contract  may 
have  been  a  remote  cause  of  the  loss;  but  he  is  not  liable  for  a  loss  of  which 
the  peril  insured  against  was  onl}-  a  remote  cause. 

7627.  Lof^n  incurred  in  rescue  from  peril. 

Sec.  2027.  An  insurer  is  liable  where  the  thing  insured  is  rescued  from  a 
peril  insured  against,  that  would  otherwise  have  caused  a  loss,  if  in  the  course 
of  such  rescue  the  thing  is  exposed  to  a  peril  not  insured  against,  which  per- 
manentl}-  deprives  the  insured  of  its  possession,  in  whole  or  in  part;  or  where  a 
loss  is  caused  bj  eflbrts  to  rescue  the  thing  insured  from  a  peril  insured 
against. 

7628.  Excepted  perils. 

Sec.  2628.  Where  a  peril  is  specially  excepted  in  a  contract  of  insurance,  a 
loss  which  would  not  have  occurred  but  for  such  peril,  is  thereby  excepted; 
although  the  immediate  cause  of  the  loss  was  a  peril  which  was  not  excepted. 

7629.  Exoneration  of  insurer. 

Sec.  2629.  An  insurer  is  not  liable  for  a  loss  caused  by  the  willful  act  of  the 
insured;  but  he  is  not  exonerated  by  the  negligence  of  the  insured,  or  of  his 
agents  or  others.  [Amendment,  approved  March  30,  1874;  Amendments  1^1  ^-A, 
256;  took  effect  July  1,  1S14..^'^ 

ARTICLE  X, 

NOTICE    OF    LOSS. 

7633.  Insurer  exonerated  by  failure  to  give  notice  of  loss. 

Sec  2633.  In  case  of  loss  uj^on  an  insurance  against  fire,  an  insurer  is  exon- 
erated, if  notice  thereof  be  not  given  to  him  by  some  person  insured,  or  entitled 
to  the  benefit  of  the  insurance,  without  unnecessary  delay.  [Amendment ,  ap- 
Xivoved  March  30,  1874;  Amendments  1873-4,  256;  took  eff'ect  July  1,  1874."^^ 

7634.  Preliminary  pivoofs. 

Sec  2634.  When  preliminary  proof  of  loss  is  required  by  a  policy,  the  insured 
is  not  bound  to  give  such  proof  as  would  be  necessary  in  a  court  of  justice;  but 
it  is  sufficient  for  him  to  give  the  best  evidence  which  lie  has  in  his  power  at 
the  time. 

7635.  Waivers  of  defects  in  notice,  etc. 

Sec.  2635.  All  defects  in  a  notice  of  loss,  or  in  preliminar\'  proof  thereof, 
which  the  insured  might  remedy,  and  which  the  insurer  omits  to  specify  to  him, 
without  unnecessary  delay,  as  grounds  of  objection,  are  waived. 

7636.  Waiver  of  delay. 

Sec  2036.  Delay  in  the  presentation  to  an  insurer  of  notice  or  proof  of  loss 
is  waived,  if  caused  by  any  act  of  his,  or  if  he  omits  to  make  objection  promptly 
and  sj^ecifically  upon  that  ground. 

7637.  Certificate,  xohen  dispensed  with. 

Sec  2637.  If  a  policy  requires,  by  way  of  preliminary  jiroof  of  loss,  the  cer- 
tificate or  testimony'  of  a  person  other  than  the  insured,  it  is  sufficient  for  the 
insured  to  use  reasonable  diligence  to  procure  it,  and  in  case  of  the  refusal  of 


(a)  Tlio  ori!,nnal  Rcction,  instead  of  "  orof  liiB  agents         (h)  The   original  Bection   did   not  have   the   words 
r  otherK,"  had  thf  wordK  •■  imr  by  fraud  or  uegliyence     "  ux^on  an  insurance  against  fire." 
Q  the  part  of  bis  agents  or  others." 

828 


INSURANCE,  7G37-7G49 

such  person  to  give  it,  then  to  furnish  reasonuLlo  evidence  to  the  insurer  that 
such  refusal  was  not  induced  by  any  just  grounds  of  disbelief  iu  the  facts 
necessary  to  be  certified. 

ARTICLE  XI. 

DOUBLE    INSURANCE. 

7641.  Double  insurance. 

Sec.  2G41.  A  double  insurance  exists  where  the  same  person  is  insured  by 
several  insurers  separately  in  respect  to  the  same  subject  and  interest. 

7642.  Double  insurance  contribution. 

Sec.  2642,  In  case  of  double  insurance,  the  several  insurers  are  liable  to  pay 
losses  thereon  as  follows: 

1.  In  fire  insurance,  each  insurer  must  contribute  ratably  towards  the  loss, 
without  regard  to  the  dates  of  the  several  policies; 

2.  In  marine  insurance,  the  liability  of  the  several  insurers  for  a  total  loss, 
whether  actual  or  constructive,  where  the  policies  are  not  simultaneous,  is  in 
the  order  of  the  dates  of  the  several  policies:  no  liability  attaching  to  a  second 
or  other  subsequent  policy  except  as  to  the  excess  of  the  loss  over  the  amount 
of  all  previous  policies  on  the  same  interest.  If  two  or  more  policies  bear  date 
upon  the  same  day,  they  are  deemed  to  be  simultaneous,  and  the  liability  of 
insurers  on  simultaneous  policies,  is  to  contribute  ratably  with  each  other.  The 
insolvency  of  any  of  the  insurers  does  not  affect  the  proportionate  liability  of 
the  other  insurers.  The  liability  of  all  insurers  on  the  same  marine  interest  for 
a  partial  or  average  loss,  is  to  contribute  ratably.  [Amendment,  approved  3Iarch 
30,  1874;  Amendme^its  1873-4,  257;  took  effect  July  1,  1874. ^''> 

ARTICLE  XII. 

reinsurance. 

7646.  Eeinsurance,  what. 

Sec  2646.  A  contract  of  reinsurance  is  one  by  which  an  insurer  procures  a 
third  person  to  insure  him  against  loss  or  liability  by  reason  of  such  original 
insurance. 

7647.  Disclosures  required. 

Sec.  2647.  Where  an  insurer  obtains  reinsurance,  he  must  communicate  all 
the  representations  of  the  original  insured,  and  also  all  the  knowledge  and 
information  he  possesses,  whether  previously  or  subsequently  acquired,  which 
are  material  to  the  risk. 

7648.  Reinsurance  presumed  to  be  against  liability. 

Sec  2648.  A  reinsurance  is  presumed  to  be  a  contract  of  indemnity  against 
liability,  and  not  merely  against  damage. 

7649.  Original  insured  has  no  interest. 

Sec  2649.  The  original  insured  has  no  interest  in  a  contract  of  reinsurance. 

(a)  Original  section:  BurerB,  who,  on  paying  it,  may  require  the  others  to 

Sf.c.  21342.  In  case  of  double  insurance,  the  insured     contribute  ratably  thereto, 
may  claim  payment  of  a  loss  from  any  one  of  the  iu- 


829 


7655-7665  CIVIL  CODE. 

CHAPTER  II. 

MARIN  E  IXSUK ANOE . 

Abticle  I.  Definition-  op  Marine  Insueanck 7G55 

II.  Inscjkable  Inteeesx 7659 

III.  CONCEALMKST 7669 

IV.  Rkpbesentations 7676 

V.  Implied  Waueanties 7681 

YI.  The  Voyage,  and  Deviation 7692 

VII.  Loss 7701 

VIII.  Abandonment. 7716 

IX.  Measuek  of  Indemnity 7736 

ARTICLE  I.  • 

DEFINITION    OF    MARINE    INSURANCE. 

'IGSS.  Marine  insurance,  lohat. 

Sec.  2G55.  Marine  insurance  is  an  insurance  against  risks  connected  with, 
na^-igation,  to  which  a  ship,  cargo,  freightage,  profits,  or  other  insurable  interest 
in  movable  property,  may  be  exposed  during  a  certain  voyage  or  a  fixed  period 
of  time. 

ARTICLE  II. 

INSURABLE   INTEREST. 

7659.  Insurable  interest  in  a  ship. 

Sec.  2Go9.  The  owner  of  a  ship  has  in  all  cases  an  insurable  interest  in  it, 
even  when  it  has  been  chartered  by  one  who  covenants  to  pay  him  its  value  in 
case  of  loss. 

7660.  Interest  reduced  by  bottomry. 

Sec.  26G0.  The  insurable  interest  of  the  owner  of  a  ship  hypothecated  by 
bottomiy  is  ouly  the  excess  of  its  value  over  the  amount  secured  by  bottomry. 

7661.  Freightage,  ichat. 

Sec.  2661.  Freightage,  in  the  sense  of  a  policy  of  marine  insurance,  signifies 
all  the  benefit  derived  by  the  owner,  either  from  the  chartering  of  the  ship  or 
its  employment  for  the  carriage  of  his  own  goods  or  those  of  others. 

7662.  Expected  freightage. 

Sec.  2G62.  The  owner  of  a  ship  has  an  insurable  interest  in  expected 
freightage  which  he  would  have  certainly'  earned  but  for  the  intervention  of  a 
peril  insured  against. 

7663.  Interest  in  expected  freightage,  ivhat. 

Sec.  2GG3.  The  interest  mentioned  in  the  last  section  exists,  in  the  case  of  a 
charter  party,  when  the  ship  has  broken  ground  on  the  chartered  voyage,  and 
if  a  price  is  to  be  paid  for  the  carriage  of  goods  when  they  are  actually  on 
board,  or  there  is  some  contract  for  i^utting  them  on  board,  and  both  ship  and 
goods  are  ready  for  tlie  specified  voyage. 

7664.  Insurable  interest  in  pr(ftts. 

Sec  2GG4:.  One  who  has  an  interest  in  the  thing  from  which  profits  are  ex- 
pected to  proceed,  h;is  an  insurable  interest  in  the  profits. 

7665.  Insurable  interest  of  charterer. 

Sec.  2GG5.  The  charterer  of  a  ship  has  an  insurable  interest  in  it,  to  the 
extent  that  he  is  liable  to  be  damnified  by  its  loss. 

830 


INSURANCE.  7GG9-7G82 

ARTICLE   III. 

CONCEALMENT. 

7669.  Information  must  be  comviunicaled. 

Sko.  20(59.  In  marine  insurance  each  joarty  is  bound  to  comniunicnte,  in 
addition  to  what  is  required  by  section  25G3,  all  the  information  wliich  lie  jios- 
sesses,  material  to  the  risk,  except  such  as  is  mentioned  in  section  25G4,  and  to 
state  the  exact  and  whole  truth  in  relation  to  all  matters  that  he  represents,  or 
upon  inquii-y  assumes  to  disclose. 

7670.  Material  inforviation. 

Sec.  2670.  In  marine  insurance,  information  of  the  belief  or  expectation  of  a 
third  person,  in  reference  to  a  material  fact,  is  material. 

7671.  Presumption  of  knowledge  of  loss. 

Sec.  2671.  A  person  insured  by  a  contract  of  marine  insurance  is  presumed 
to  have  had  knowledge,  at  the  time  of  insuring,  of  a  prior  loss,  if  the  informa- 
tion might  joossibly  have  reached  him  in  the  usual  mode  of  transmission,  and 
at  the  usual  rate  of  communication. 

7672.  Concealments  tvhich  only  affect  the  risk  in  question. 

Sec.  2672.  A  concealment  in  a  marine  insurance,  in  respect  to  aiij  of  the  fol- 
lowing matters,  does  not  vitiate  the  entire  contract,  but  merely  exonerates  the 
insurer  from  a  loss  resulting  from  the  risk  concealed: 

1.  The  national  character  of  the  insured; 

2.  The  liability  of  the  thing  insured  to  capture  and  detention; 

3.  The  liability  to  seizure  from  breach  of  foreign  laws  of  trade; 

4.  The  want  of  necessary  documents;  and, 

5.  The  use  of  false  and  simulated  papers. 

ARTICLE  IV. 

REPRESENTATIONS. 

7676.  Effect  of  intentional  falsity. 

Sec  2676.  If  a  representation,  by  a  person  insured  by  a  contract  of  marine 
insurance,  is  intentionally  false  in  any  respect,  whether  material  or  immaterial, 
the  insurer  may  I'escind  the  entire  contract. 

7677.  Eepresentation  of  expectation. 

Sec.  2677.  The  eventual  falsity  of  a  representation  as  to  expectation  does  not, 
in  the  absence  of  fraud,  avoid  a  contract  of  insurance. 

ARTICLE  V. 

IMPLIED   WARRANTIES. 

7681.  Warranty  of  seaworthiness. 

Sec.  2681.  In  every  marine  insurance  upon  a  ship  or  freight,  or  freightage, 
or  upon  anything  which  is  the  subject  of  marine  insurance,  a  warranty  is  implied 
that  the  ship  is  seaworthy.  [Amendment,  approved  March  30, 1874;  Amendments 
1873-4,  257;  took  effect  July  1,  1874.^''> 

7682.  Seaworthiness,  what. 

Sec.  2682.  A  ship  is  seaworthy,  when  reasonably  fit  to  perform  the  sei-rices, 
and  to  encounter  the  ordinary  perils  of  the  voyage,  contemplated  by  the  parties 
to  the  policy. 

(a)  Original  section:  owner,  unleBS  made  for  a  epecified  length  of  time,  a 

Sec.  2681.  In  every  marine  insurance  upon  ship  or  warranty  is  Implied  that  the  6hip  BhaU  be  eeaworthy. 
freightage,  or  upon  anything  belonging  to  the  ship- 

831 


7683-7693  CH^IL  CODE. 

7683.  Seaiooiihiness,  ivhen  must  exUt. 

Sec.  2683.  An  implied  warranty  of  seaworthiness  is  complied  with  if  the  ship 
be  seaworthy  at  the  time  of  the  commencement  of  the  risk,  except  in  the  follow- 
ing cases: 

1.  When  the  insurance  is  made  for  a  specified  length  of  time,  the  implied 
warranty  is  not  complied  with  unless  the  ship  be  seaworthy  at  the  commence- 
ment of  every  voyage  she  may  undertake  during  that  time;  and, 

2.  When  the  insurance  is  upon  the  cargo,  which,  by  the  terms  of  the  policy 
or  the  description  of  the  voyage,  or  the  established  custom  of  the  trade,  is  to  be 
transshipped  at  an  intermediate  port,  the  implied  warranty  is  not  complied  with, 
unless  each  vessel  upon  which  the  cargo  is  shipped  or  transshipped  be  seaworthy 
at  the  commencement  of  its  particular  voyage.  [Amendment,  appi'oved  March 
80,  1874;  Amendments  1873-4,  257;  took  efeet  July  1,  1874.^^' 

7684.  Wlmt  things  are  required  to  constitute  seaioorthiness. 

Sec.  2684.  A  warrant}^  of  seaworthiness  extends  not  only  to  the  condition  of 
the  structui-e  of  the  ship  itself,  but  i-equires  that  it  be  properly  laden,  and  pro- 
vided with  a  competent  master,  a  sufficient  nvimber  of  competent  officers  and 
seamen,  and  the  requisite  ai^purtenances  and  equij^ments,  such  as  ballast, 
cables  and  anchors,  cordage  and  sails,  food,  water,  fuel,  and  lights,  and  other 
necessary  or  proper  stores  and  implements  for  the  voyage. 

7685.  Different  degrees  of  seaworthiness  at  different  stages  of  the  voyage. 

Sec.  2685.  Where  different  portions  of  the  voyage  contemplated  by  a  policy 
differ  in  respect  to  the  things  requisite  to  make  the  ship  seaworthy  therefor,  a 
warranty  of  seaworthiness  is  complied  with  if,  at  the  commencement  of  each 
portioil,  the  ship  is  seaworthy  with  reference  to  that  portion. 

7686.  Unseaicorthiness  during  the  voyage. 

Sec.  2686.  When  a  ship  becomes  unseaworthy  duiing  the  voyage  to  which  an 
insurance  relates,  an  unreasonable  delay  in  repairing  the  defect  exonerates  the 
insurer  from  liability  from  any  loss  arising  therefrom. 

7687.  Seaxvorthiness  for  purposes  of  insurance  on  cargo. 

Sec.  2687.  A  ship  which  is  seaworthy  for  the  purjDose  of  an  insurance  upon 
the  ship  may,  nevertheless,  by  reason  of  being  unfitted  to  receive  the  cargo,  be 
unseaworthy  for  the  purpose  of  insurance  upon  the  cargo. 

7688.  Neutral  papers. 

Sec.  2688.  Where  the  nationality  or  neutrality  of  a  ship  or  cargo  is  expressly 
warranted,  it  is  implied  that  the  ship  will  carry  the  requisite  documents  to  show 
Buch  nationality  or  neutrality,  and  that  it  will  not  carry  any  documents  which 
cast  reasonable  suspicion  thereon. 

ARTICLE  VI. 

THE    VOYAGE    AND    DEVIATION. 

7692.  Voyage  insured,  how  determined. 

Sec  2692.  When  the  voyage  contemplated  by  a  policy  is  described  by  the 
places  of  beginning  and  ending,  the  voyage  insured  is  one  which  conforms  to 
the  course  of  sailing  fixed  by  mercantile  usage  between  those  places. 

7693.  Course  of  sailing,  Jioiv  determined. 

Sec.  2693.  If  the  course  of  sailing  is  not  fixed  by  mercantile  usage,  the  voyage 
insured  by  a  policy  is  the  way  between  the  j^laces  specified,  which,  to  a  master 
of  ordinary  skill  and  discretion,  would  seem  the  most  natural,  direct,  and  advan- 
tageous. 

(a)  Original  section:  complied  with  if  the  Bhip  is  seaworthy  at  the  time  of 

Bko.  2683.  An  implied  warrauty  of  seaworthiness  is     the  commencement  of  the  ris):. 

832 


INSURANCE.  7G94-7707 

7694.  Deviation,  what. 

Sec.  2094.  Deviation  is  a  departure  from  the  course  of  the  voya^'O  insured, 
mentioned  in  the  last  two  sections,  or  an  unreasonable  delay  in  pursuinj^f  the 
voyage,  or  the  commencement  of  an  entirely  different  voyage. 

7695.  When  proper. 

Sec.  2G95.  A  deviation  is  proper: 

1.  When  caused  by  circumstances  over  Avhich  neither  the  master  nrjr  the 
owner  of  the  ship  has  any  control; 

2.  When  necessary  to  comply  with  a  warranty,  or  to  avoid  a  peril,  whether 
insured  against  or  not; 

3.  When  made  in  good  faith,  and  upon  reasonable  gi-ounds  of  belief  in  its 
necessity  to  avoid  a  peril;  or, 

4.  When  made  in  good  faith,  for  the  purpose  of  saving  human  life,  or  reliev- 
ing another  vessel  in  distress. 

7696.  Mhen  improper. 

Sec.  2696.  Every  deviation  not  specified  in  the  last  section  is  improper. 

7697.  Deviation  exonerates  the  insurer. 

Sec.  2697.  An  insurer  is  not  liable  for  any  loss  happening  to  a  thing  insured 
subsequently  to  an  imj)roper  deviation. 

ARTICLE  VII. 

LOSS. 

7701.  Total  and  partial  loss. 

Sec.  2701.  A  loss  may  be  either  total  or  partial. 

7702.  Partial  loss. 

Sec.  2702.  Eveiy  loss  which  is  not  total  is  partial. 

7703.  Actual  and  constructive  total  loss. 

Sec.  2703.  A  total  loss  may  be  either  actual  or  constructive. 

7704.  Actual  total  loss,  what. 

Sec.  2704.  An  actual  total  loss  is  caused  by: 

1.  A  total  destruction  of  the  thing  insured; 

2.  The  loss  of  the  thing  by  sinking,  or  by  being  broken  up; 

3.  Any  damage  to  the  thing  which  renders  it  valueless  to  the  owner  for  the 
jDurposes  for  which  he  held  it;  or, 

4.  Any  other  event  which  entirely  deprives  the  owner  of  the  possession,  at 
the  port  of  destination,  of  the  thing  insured. 

7705.  Constructive  total  loss. 

Sec.  2705.  A  constructive  total  loss  is  one  which  gives  to  a  person  insured  a 
right  to  abandon,  under  section  2717, 

7706.  Presumed  actual  loss. 

Sec.  2706.  An  actual  loss  may  be  presumed  from  the  continued  absence  of  a 
ship  without  being  heard  of;  and  the  length  of  time  which  is  sufficient  to  raise 
this  presumption  depends  on  the  circumstances  of  the  case. 

7707.  Insurance  on  cargo  ivhen  voyage  broken  up. 

Sec.  2707.  When  a  ship  is  i^revented,  at  an  intermediate  port,  from  complet- 
ing the  voyage,  by  the  perils  insured  against,  the  master  must  make  every  exer- 
tion to  procure,  in  the  same  or  a  contiguous  port,  another  ship,  for  the  purpose 
of  conveying  the  cargo  to  its  destination;  and  the  liabihty  of  a  marine  insurer 
thereon  continues  after  they  are  thus  reshipped.  [Amendment,  approved  March 
30,  1874;  Amendments  1873-4,  258;  took  effect  July  1,  1874.'"' 

(a)  The  original Bectiou  did  not  have  the  words  "  by  the  perils  insured  against." 

53  833 


7708-7717  CIVIL  CODE. 

7708.  Cost  ofreshipment,  etc. 

Sec.  2708.  In  addition  to  the  liability  mentioned  in  the  last  section,  a  marine 
iusuver  is  bound  for  damages,  expenses  of  discharging,  storage,  reshipment, 
extra  freightage,  and  all  other  expenses  incurred  in  saving  cargo  reshipped 
pursuant  to  the  last  section,  up  to  the  amount  insured. 

7709.  When  insured  is  entitled  to  payment. 

Sec.  2709.  Upon  an  actual  total  loss,  a  person  insured  is  entitled  to  payment 
"without  notice  of  abandonment. 

7710.  [Sec.  2710'"'  was  repealed  by  act  approved  March  30, 1874;  Amendments 
1873-4,  258;  took  efiect  July  1,  1874.] 

7711.  Average  loss. 

Sec.  2711.  "SVhere  it  has  been  agreed  that  an  insurance  upon  a  particular 
thing  or  class  of  things  shall  be  free  from  particular  average,  a  marine  insurer 
is  not  liable  for  any  particular  average  ^loss  not  depriving  the  insured  of  the 
possession,  at  the  port  of  destination,  of  the  whole  of  such  thing,  or  class  of 
things,  even  though  it  become  entirely  worthless,  but  he  is  liable  for  his  pro- 
portion of  all  general  average  loss  assessed  upon  the  thing  insured.  [Amend- 
ment, approved  March  30, 1874;  Amendments  1873-4,  258;  took  effect  Julyl,  1874.*^' 

7712.  Insurance  against  total  loss. 

Sec.  2712.  An  insurance  confined  in  terms  to  an  actual  total  loss,  does  not 
cover  a  constructive  total  loss,  but  covers  any  loss  which  necessarily  results  in 
depriving  the  insured  of  the  j^ossession,  at  the  port  of  destination,  of  the  entire 
thing  insured.  [Amendment,  approved  March  30,  1874;  Amendments  1873-4, 
259;  took  effect  July  1,  1874.'*=' 

ARTICLE  VIII. 

ABANDONMENT. 

7716.  Abandonment,  ichat. 

Sec.  271G.  Abandonment  is  the  act  by  which,  after  a  constructive  total  loss, 
a  person  insured  by  contract  of  marine  insurance  declares  to  the  insurer  that  he 
relinquishes  to  him  his  interest  in  the  thing  insured. 

7717.  When  insured  may  abandon. 

Sec.  2717.  A  person  insured  by  a  contract  of  marine  insurance  may  abandon 
the  thing  insured,  or  any  particular  portion  thereof  separately  valued  by  the 
policy,  or  otherwise  separately  insured,  and  recover  for  a  total  loss  thereof, 
when  the  cause  of  the  loss  is  a  peril  insured  against: 

1.  If  more  than  half  thereof  in  value  is  actually  lost,  or  would  have  to  be 
expended  to  recover  it  from  the  peril; 

2.  If  it  is  injured  to  such  an  extent  as  to  reduce  its  value  more  than  one 
half; 

3.  If  the  thing  insured,  being  a  ship,  the  contemplated  voyage  cannot  be 
lawfully  performed  without  incurring  an  expense  to  the  insured  of  more  than 
half  the  value  of  the  thing  abandoned,  or  without  incurring  a  risk  which  a  pru- 
dent man  would  not  take  under  the  circumstances;  or, 

4.  If  the  thing  insured,  being  cargo  or  freightage,  the  voyage  cannot  be  per- 
formed nor  another  ship  procured  by  the  master,  within  a  reasonable  time  and 
with  reasonable  diligence,  to  forward  the  cargo,  without  incurring  the  like  ex- 
pense or  risk.  But  freightage  cannot  in  any  case  be  abandoned,  unless  the  ship 
is  also  abandoned. 

(a)  I{(i)pale(l  Bcction:  average  "  before  the  word  "  loss,"  and  did  not  have  the 

Skc.  2710.  Where  profits  are  insured,  but  the  goodB  laist  elniiKe,  coiumencing  with  the  words  "but  he  is 

are  not  insured,  a  marine  insurer  is  not  liable  for  a  liable  for  his  i^roportion." 

constructive  totttllosB  unlessthe  insured  offerstoaban-  (c)    The   original  section   did  not    have   the  word 

don  the  goods.  "  actuitl."    It  liml  at  the  end  the  additional  words  "  and 

(6)  The  original  section  did  not  have  "particular  also  a  general  average  loss." 

834 


INSURANCE.  7718-7731 

7718.  3fust  be  unqualified. 

Sec.  2718.  An  abandonment  must  be  neither  partial  nor  conditional. 

7719.  When  may  be  made. 

Sec.  2719.  An  abandonment  must  be  made  within  a  reasonable  time  after  the 
information  of  the  loss,  and  after  the  commencement  of  the  voyage,  and  before 
the  party  abandoning  has  information  of  its  completion. 

7720.  Abandonment  may  be  defeated. 

Sec.  2720.  Where  the  information  upon  which  an  abandonment  has  been 
made  proves  incorrect  or  the  thing  insured  was  so  far  restored  when  the  aban- 
donment was  made  that  there  was  then  in  fact  no  total  loss,  the  abandonment 
becomes  ineffectual. 

7721.  Hoiv  made. 

Sec.  2721.  Abandonment  is  made  by  giving  notice  thereof  to  the  insurer, 
which  may  be  done  orally,  or  in  Avriting. 

7722.  Requisites  of  notice. 

Sec.  2722.  A  notice  of  abandonment  must  be  explicit,  and  must  specify  the 
particular  cause  of  the  abandonment,  but  need  state  only  enough  to  show  that 
there  is  probable  cause  therefor,  and  need  not  be  accompanied  with  proof  of 
interest  or  of  loss. 

7723.  No  other  Cause  can  be  relied  on. 

Sec.  2723.  An  abandonment  can  be  sustained  only  upon  the  cause  specified 
in  the  notice  thereof. 

7724.  Effect. 

Sec.  2724.  An  abandonment  is  equivalent  to  a  transfer,  by  the  insured,  of  his 
interest,  to  the  insurer,  with  all  the  cbances  of  recovery  and  indemnity. 

7725.  Waiver  of  former  abandonment. 

Sec.  2725.  If  a  marine  insurer  pays  for  a  loss  as  if  it  were  an  actual  total 
loss,  he  is  entitled  to  whatever  may  remain  of  the  thing  insured,  or  its  proceeds 
or  salvage,  as  if  there  had  been  a  formal  abandonment. 

7726.  Agents  of  the  insured  become  agents  of  the  insurer. 

Sec.  2726.  Upon  an  abandonment,  acts  done  in  good  faith  by  those  who  were 
agents  of  the  insured  in  respect  to  the  thing  insured,  subsequent  to  the  loss, 
are  at  th^  risk  of  the  insurer,  and  for  his  benefit. 

7727.  Acceptance  not  necessary. 

Sec.  2727.  An  acceptance  of  an  abandonment  is  not  necessary  to  the  rights 
of  the  insured,  and  is  not  to  be  presumed  from  the  mere  silence  of  the  insurer, 
upon  his  x'eceiving  notice  of  abandonment. 

7728.  Acceptance  conclusive. 

Sec.  2728.  The  acceptance  of  an  abandonment,  whether  expressed  or  implied, 
is  conclusive  upon  the  parties,  and  admits  the  loss  and  the  sufficiency  of  the 
abandonment. 

7729.  Accepted  abandonment,  irrevocable. 

Sec.  2729.  An  abandonment  once  made  and  accepted  is  irrevocable,  unless 
the  ground  upon  which  it  was  made  proves  to  be  unfounded. 

7730.  Freightage,  how  affected  by  abandonment  of  ship. 

Sec.  2730.  On  an  accepted  abandonment  of  a  ship,  freightage  earned  pre- 
vious to  the  loss  belongs  to  the  insurer  thereof;  but  freightage  sub.sequently 
earned  belongs  to  the  insurer  of  the  ship. 

7731.  Refusal  to  accept. 

Sec.  2731.  If  an  insurer  refuses  to  accept  a  valid  abandonment,  he  is  hable 

835 


7731-7742  CIVIL  CODE. 

as  upon  an  actual  total  loss,  deducting  from  the  amoiint  any  proceeds  of  the 
thing  insured  which  may  have  come  to  the  hands  of  the  insured. 
7732.   Omi!<sio7i  to  abandon. 

Sec.  2732.  If  a  person  insured  omits  to  abandon,  he  niaj'  nevertheless  recover 
his  actual  loss. 

ARTICLE  IX. 

aiEASURE    OF    INDEarNITY. 

7736.  VdJuation,  when  conclusive. 

Sec  2736.  A  valuation  in  a  jdc^Hcj'  of  marine  insurance  is  conclusive  between 
the  parties  thereto  in  the  adjustment  of  either  a  partial  or  total  loss,  if  the  in- 
sured has  some  interest  at  risk,  and  there  is  no  fraud  on  his  part;  except  that 
when  a  thing  has  been  hypothecated  by  bottomr}'  or  respondentia,  before  its 
insurance,  and  without  the  knowledge  of  the  person  actually  procuring  the 
insurance,  he  may  show  the  real  value.  But  a  valuation  fraudulent  in  fact 
entitles  the  insurer  to  rescind  the  contract. 

7737.  Partial  loss. 

Sec.  2737.  A  marine  insurer  is  liable  upon  a  partial  loss,  only  for  such  pro- 
portion of  the  amoimt  insured  by  him  as  the  loss  bears  to  the  value  of  the 
whole  interest  of  the  insured  in  the  property  insured. 

7738.  Profits. 

Sec.  2738.  Where  iDrotits  are  separately  insured  in  a  contract  of  marine  insur- 
ance, the  insured  is  entitled  to  recover,  in  case  of  loss,  a  proportion  of  such 
profits  equivalent  to  the  proportion  which  the  value  of  the  property  lost  bears 
to  the  value  of  the  whole. 

7739.  Valuation  apportioned. 

Sec.  2739.  In  case  of  a  valued  policy  of  maiine  insurance  on  freightage  or 
cargo,  if  a  part  only  of  the  subject  is  exjDOsed  to  risk,  the  valuation  a^jplies  only 
in  jDrojDortion  to  such  part, 

7740.  Valuation  applied  to  profits. 

Sec  2740.  "When  profits  are  valued  and  insured  by  a  contract  of  marine  insur- 
ance, a  loss  of  them  is  conclusively  presumed  from  a  loss  of  the  property  out 
of  which  they  were  expected  to  arise,  and  the  valuation  fixes  their  amount. 

7741.  Estimating  loss  under  an  open  policy. 

Sec.  2741.  In  estimating  a  loss  under  an  open  policy  of  marine  insurance,  the 
following  rules  are  to  be  observed: 

1.  The  value  of  a  ship  is  its  value  at  the  beginning  of  the  risk,  including  all 
articles  or  charges  which  add  to  its  permanent  value,  or  which  are  necessary'  to 
•prepare  it  for  the  voyage  insured; 

2.  The  value  of  cargo  is  its  actual  cost  to  the  insured,  when  laden  on  board, 
or  where  that  cost  cannot  be  ascertained,  its  market  value  at  the  time  and  place 
of  lading,  adding  the  charges  incurred  in  purchasing  and  placing  it  on  board, 
but  without  reference  to  any  losses  incurred  in  raising  money  for  its  purchase, 
or  to  any  drawback  on  its  exportation,  or  to  the  fluctuations  of  the  market  at 
the  port  of  destination,  or  to  expenses  incurred  on  the  Avay  or  on  arrival; 

3.  The  value  of  freightage  is  the  gross  freightage,  exclusive  of  primage,  with- 
out reference  to  the  cost  of  earning  it;  and, 

4.  The  cost  of  insurance  is  in  each  case  to  be  added  to  the  value  thus  esti- 
mated. 

7742.  Arrival  of  thlny  damaged. 

Sec,  2742.  If  cargo  insured  against  partial  loss  arrives  at  the  port  of  destina- 
tion in  a  damaged  condition,  the  loss  of  the  insured  is  deemed  to  be  the  same 

83G 


INSURANCE.  77i'2-7755 

proi^ortion  of  the  value  which  the  market  price  at  that  port,  of  the  thing  so 
damaged,  bears  to  the  market  price  it  would  have  brought  if  sound. 

7743.  Labor  and  expenses. 

Sec.  2743.  A  marine  insurer  is  liable  for  all  the  expense  attendant  upon  a  loss 
which  forces  the  ship  into  port  to  be  repaired;  and  where  it  is  agreed  that  tlie 
insured  may  labor  for  the  recovery  of  the  property,  the  insurer  is  liable  for  tlie 
expense  incurred  thereby,  such  expense,  in  either  case,  being  in  addition  to  a 
total  loss,  if  that  afterwards  occurs. 

7744.  General  average. 

Sec.  2744.  A  marine  insurer  is  liable  for  a  loss  falling  upon  the  insured, 
through  a  contribution  in  respect  to  the  thing  insured,  required  to  be  made  by 
him  towards  a  general  average  loss  called  for  by  a  peril  insured  against. 

7745.  Contribution  subrogation  of  insurer. 

Sec.  2745.  Where  a  person  insured  by  a  contract  of  marine  insurance  has  a 
demand  against  others  for  contribution,  he  may  claim  the  whole  loss  from  the 
insurer,  subrogating  him  to  his  own  right  to  contribution.  But  no  such  claim 
can  be  made  upon  the  insurer  after  the  separation  of  the  interests  liable  to  con- 
tribution, nor  when  the  insured,  having  the  right  and  opportunity  to  enforce 
contribution  from  others,  has  neglected  or  waived  the  exercise  of  that  right. 
[Amendment,  approved  Ilarch  30,  1874;  Amendments  1873-4,  259;  took  efeci  July 
1,  1874.^^> 

7746.  One  third  new  for  old. 

Sec.  2746.  In  the  case  of  a  partial  loss  of  a  ship  or  its  equipments,  the  old 
materials  are  to  be  applied  towards  payment  for  the  new,  and  whether  the  ship 
is  new  or  old,  a  marire  insurer  is  liable  for  only  two  thirds  of  the  remaining  cost 
of  the  repairs,  except  that  he  must  joay  for  anchors  and  cannon  in  full,  and  for 
sheathing  metal  at  a  depreciation  of  only  two  and  one  half  per  cent,  for  each 
month  that  it  has  been  fastened  to  the  ship. 

CHAPTEE  III. 

FIRE   INSURANCE. 

[Sec.  2752^^"  was  repealed  by  act  approved  March  30,  1874;  Amendments 
1873-4,  259;  took  effect  July  1,  1874.] 

7753.  Alteration  increasing  risk. 

Sec.  2753.  An  alteration  in  the  use  or  condition  of  a  thing  insured  from  that 
to  which  it  is  Limited  by  the  policy,  made  without  the  consent  of  the  insurer,  by 
means  within  the  control  of  the  insured,  and  increasing  the  risk,  entitles  an 
insurer  to  rescind  a  contract  of  fire  insurance. 

7754.  Alteration  not  increasing  risk. 

Sec  2754.  An  alteration  in  the  use  or  condition  of  a  thing  insured  from  that 
to  which  it  is  limited  by  the  policy,  which  does  not  increase  the  risk,  does  not 
affect  a  contract  of  fire  insurance. 

7755.  Acts  of  the  insured. 

Sec  2755.  A  contract  of  fire  insurance  is  not  affected  by  any  act  of  the  insured 
subsequent  to  the  execution  of  the  policy,  which  does  not  violate  its  provisions, 
even  though  it  increases  the  risk  and  is  the  cause  of  a  loss. 

(a)  The  original  section  consisted  of  the  first  sen-  concealment,  nor  by  the  falsity  of  a  repreBrntntlon  not 
teuce  alone,  down  to  and  including  the  words  "right  inserted  in  the  policy,  though  in  a  material  particular, 
to  contribution."  unless  made  with  a  fraudulent  intent. 

( h  ]  Repealed  section : 

Sec.  2752.  An  insurance  against  fire  is  not  afiectedby 

837 


77o6-77GG  CIVIL  CODE. 

7756.  Measure  of  indemnity. 

Sec.  2756.  If  there  is  no  valuation  in  the  policy,  the  measure  of  indemnity 
in  an  insurance  against  fire  is  the  expense,  at  the  time  that  the  loss  is  payable, 
of  rei^lacing  the  thing  lost  or  injured  in  the  condition  in  which  it  was  at  the 
time  of  the  injury;  but  the  effect  of  a  valuation  in  a  policy  of  fire  insurance  is 
the  same  as  in  a  policy  of  marine  insurance. 

CHAPTER  IV. 

LIFE   AND   HEALTH   INSURANCE. 

7762.  Insurance  upon  life,  xclien2')ayahle. 

Sec.  2702.  An  insurance  upon  life  may  be  made  i:)a3'able  on  the  death  of  the 
person,  or  on  his  sur\dving  a  specified  period,  or  j)eriodically  so  long  as  he  shall 
live,  or  otherwise  contingently  on  the  continuance  or  determination  of  life. 

7763.  Insurable  inteirsi. 

Sec.  2763.  Eveiy  person  has  an  insurable  interest  in  the  life  and  health: 

1.  Of  himself; 

2.  Of  auy  person  on  whom  he  depends  wholly  or  in  part  for  education  or 
support; 

3.  Of  any  person  under  a  legal  obligation  to  him  for  the  payment  of  money, 
or  respecting  property  or  services,  of  which  death  or  illness  might  delay  or  pre- 
vent the  i^erformance;  and 

4.  Of  auy  person  upon  whose  life  any  estate  or  interest  vested  in  him  depends. 

7764.  Assignee,  etc.,  of  life  policy  need  have  no  interest. 

Sec.  2764.  A  policy  of  insurance  upon  life  or  health  may  i:)ass  by  transfer, 
will,  or  succession  to  any  person,  whether  he  has  an  insurable  interest  or  not, 
and  such  person  may  recover  upon  it  whatever  the  insured  might  have  recovered. 

7765.  Notice  of  transfer. 

Sec.  2765.  Notice  to  an  insurer  of  a  transfer  or  bequest  thereof  is  not  neces- 
sary to  presen-e  the  validity  of  a  policy  of  insurance  uj^on  life  or  health,  unless 
thereby  expressly  required. 

7766.  Measure  of  indemnity. 

Sec.  2766.  Unless  the  interest  of  a  person  insured  is  susceptible  of  exact 
pecuniary  measurement,  the  measure  of  indemnity  under  a  policy  of  insurance 
upon  life  or  health  is  the  sum  fixed  in  the  policy. 

Au  Act  to  regulate  the  forfeiture  of  policies  of  life  insurance. 
Approved  February  2, 1872;  1871-2,  59. 

Life  policies  not  to  become  forfeited  except  to  ascertain  extent. 

Section  1.  No  policy  of  insurance  on  life  hereafter  issued  by  any  comj^any 
incorporated  under  the  laws  of  this  state  shall  be  forfeited  or  become  void  by 
the  non-payment  of  premium  thereon,  any  further  than  regards  the  right  of  the 
party  insured  therein  to  have  it  continued  in  force  beyond  a  certain  i:)eriod,  to 
be  determined  as  follows,  to  wit:  the  net  value  of  the  policy  when  the  premium 
becomes  due  and  is  not  paid  shall  be  ascei'tained  according  to  the  American 
experience  life  table  rate  of  mortality,  with  interest  at  four  and  a  half  per  centum 
per  annum,  or  the  same  interest  which  has  been  assumed  in  finding  the  net 
value  of  the  policy,  after  deducting  from  such  net  value  any  indebtedness  to 
the  company,  or  notes  held  b}-  the  comjoany  against  the  insured,  which  notes, 
if  given  for  jiremium,  shall  then  be  canceled.  Four  fifths  of  what  remains  shall 
be  considered  as  a  net  single  premium  of  temporary  insurance,  and  the  term 
for  which  it  will  insure  shall  be  determined  according  to  the  age  of  the  party 
at  the  time  of  the  lapse  of  j)remium  and  the  assumption  of  mortality  and  interest 
aforesaid. 

838 


INDEMNITY.  77GG-7778 

Insurance  due  on  death  of  insured. 

Seo.  2.  If  the  death  of  the  party  occur  within  the  term  of  the  temporaiy  in- 
surance covered  by  the  A^ahie  of  the  policy,  as  determined  in  the  ]>revious 
section,  and  if  no  condition  of  the  insurance  otlier  than  the  payment  of  the 
premium  shall  have  been  violated  by  the  insured,  the  company  shall  be  bound 
to  pay  the  amount  of  the  policy  the  same  as  if  there  had  been  no  lajise  of 
premium,  anything  in  the  policy  to  the  contrary  notwithstandiiiff;  provided, 
however,  that  notice  of  the  claim  and  proofs  of  death  shall  be  subn)ittcd  to  the 
company  within  six  months  of  the  decease;  and  provided,  also,  that  the  com- 
pany shall  have  the  right  to  deduct  from  the  amount  insured  in  the  policy  the 
amount,  at  ten  per  centum  per  annum,  of  the  jDremium  that  has  been  forborne 
at  the  time  of  the  death. 

Sec.  3,  This  act  shall  take  effect  immediately. 


TITLE  XII. 

Si 


7772.  Indemnity,  what. 

Sec.  2772.  Indemnity  is  a  contract  by  which  one  engages  to  save  another 
from  a  legal  consequence  of  the  conduct  of  one  of  the  parties,  or  of  some 
other  person. 

7773.  Indemnify  agauist  future  wrongful  act  void. 

Sec.  2773.  An  agreement  to  indemnify  a  person  against  an  act  thereafter  to 
be  done,  is  void,  if  the  act  be  known  by  such  person  at  the  time  of  doing  it,  to 
be  unlawful.  [Amendment,  approved  March  30,  1874;  Amendments  1873-4,  259; 
took  effect  July  1,  1874.^"' 

7774.  Indemnity  for  a  past  wrongful  act  valid. 

Sec.  2774.  An  agreement  to  indemnify  a  j^erson  against  an  act  already  done, 
is  valid,  even  though  the  act  was  known  to  be  wrongful,  unless  it  was  a  felony. 

7775.  Indemnity  extends  to  acts  of  agents. 

Sec.  2775.  An  agreement  to  indemnify  against  the  acts  of  a  certain  person, 
applies  not  only  to  his  acts  and  their  consequences,  but  also  to  those  of  his 
agents. 

7776.  Indemnity  to  several. 

Sec.  2776.  An  agreement  to  indemnify  several  persons  applies  to  each,  unless 
a  contrary  intention  appears. 

7777.  Persons  indemnifying  liable  jointly  or  severally  ivith  person  indemnified. 
Sec.  2777.  One  who  indemnifies  another  against  an  act  to  be  done  by  the 

latter,  is  liable  jointly  with  the  person  indemnified,  and  separately,  to  every 

person  injured  by  such  act. 

7773.  Hides  for  interpreting  agreement  of  indemnity. 

Sec.  2778.  In  the  interpretation  of  a  contract  of  indemnity,  the  following 
rules  are  to  be  applied,  unless  a  contrary  intention  api)ears: 

1.  Upon  an  indemnity  against  liability,  expressly,  or  in  other  equivalent 
terms,  the  person  indemnified  is  entitled  to  recover  upon  becoming  liable; 

2.  Upon  an  indemnity  against  claims,  or  demands,  or  damages,  or  costs, 
expressly,  or  in  other  equivalent  terms,  the  person  indemnified  is  not  entitled 
to  recover  without  payment  thereof; 

The  original  section,  instead  of  "  unlawful,"  had  the  word  "  wrongful." 

839 


7778-7787  CIVIL  CODE. 

3.  An  indemnity  ag-ainst  claims,  or  demands,  or  liability,  expressly,  or  in 
other  equivalent  tenns,  embraces  the  costs  of  defense  against  such  claims,  de- 
mands, or  liability  incurred  in  good  faith,  and  in  the  exercise  of  a  reasonable 
discretion; 

4.  The  person  indemnifying  is  bound,  on  request  of  the  person  indemnified, 
to  defend  actions  or  proceedings  brought  against  the  latter  in  respect  to  the 
matters  embraced  by  the  indemnity,  but  the  person  indemnified  has  the  right 
to  conduct  such  defenses,  if  he  chooses  to  do  so; 

5.  If,  after  request,  the  i:)erson  indemnifying  neglects  to  defend  the  person 
indemnified,  a  recovery  against  the  latter  suffered  by  him  in  good  faith,  is  con- 
clusive in  his  favor  against  the  former; 

6.  If  the  person  indemnifying,  whether  he  is  a  principal  or  a  surety  in  the 
agreement,  has  not  reasonable  notice  of  the  action  or  proceeding  against  the 
person  indemnified,  or  is  not  allowed  to  control  its  defense,  judgment  against 
the  latter  is  only  presumptive  evidence  against  the  former; 

7.  A  stipulation  that  a  judgment  against  the  person  indemnified  shall  be  con- 
clusive ujwn  the  person  indemnifying,  is  inaj)plicable  if  he  had  a  good  defense 
upon  the  merits,  which  by  want  of  ordinary  care  he  failed  to  establish  in  the 
action. 

7779.  When  person  indemnifying  is  a  surety. 

Sec.  2779.  "WTiere  one,  at  the  request  of  another,  engages  to  answer  in  dam- 
ages, whether  liquidated  or  unliquidated,  for  any  violation  of  duty  on  the  part 
of  the  latter,  he  is  entitled  to  be  reimbui'sed  in  the  same  manner  as  a  surety,  for 
whatever  he  may  jDay. 

7780.  Bail,  what. 

Sec.  2780.  Upon  those  contracts  of  indemnity  which  are  taken  in  legal  pro- 
ceedings as  security  for  the  performance  of  an  obligation  imposed  or  declared 
by  the  tribunals,  and  known  as  undertakings  or  recognizances,  the  sureties  are 
called  bail. 

7781.  How  regulated. 

Sec.  2781.  The  obligations  of  bail  are  governed  by  the  statutes  specially 
applicable  thereto. 

TITLE   XIII. 


Chapter  I.  Guaranty  in   General. 7787 

II.   SCBETYSHIP 7831 

CHAPTER  I. 

GUARANTY  IN   GENERAL. 

AkTICLK  I.  DKriN'ITION    OF  GaARANTY 7787 

II.  Ckkation  of  Guaranty 7792 

III.  I.STKUPHETATIOS    OF    GUARANTY 7799 

IV.  LiAiJiLiTY  OF  Guarantors 7806 

V.  CoNTiNuiNO  Guaranty 7814 

VI.  Exoneration  of  Guabantors 7819 

AETICLE  I. 

DEFINITION    OF   GUARANTY. 

7787.   Guaranty,  tchat. 

Sec  2787.  A  guaranty  is  a  promise  to  answer  for  the  debt,  default,  or  mis- 
carriage of  another  person. 

840 


GUARANTY.  7788-7799 

7788  Knowledge  of  principal  not  necessary  to  creation  of  guaraniy. 

Sec.  2788.  A  person  may  become  guarantor  even  without  the  knowledge  or 
consent  of  the  jJi'incipal. 

ARTICLE   II. 

CREATION    OF   GUARANTY. 

7792.  Necessity  of  a  consideration. 

Sec  2792.  Where  a  guaranty  is  entered  into  at  tlie  same  time  with  the  original 
obligation,  or  with  the  acceptance  of  the  latter  by  the  guarantee,  and  forms 
with  that  obligation  a  part  of  the  consideration  to  him,  no  other  consideration 
need  exist.  In  all  other  cases  there  must  be  a  consideration  distinct  from  that 
of  the  original  obligation. 

7793.  Guaranty  to  be  in  writing,  etc. 

Sec.  2793.  Except  as  prescribed  by  the  next  section,  a  guaranty  must  be  in 
writing,  and  signed  by  the  guarantor;  but  the  writing  need  not  express  a  con- 
sideration. 

7794.  Engagement  to  answer  for  obligation  of  another,  when  deemed  original. 
Sec.  2794.  A  promise  to  answer  for  the  obligation  of  another,  in  any  of  the 

following  cases,  is  deemed  an  original  obligation  of  the  promisor,  and  need  not 
be  in  writing: 

1.  Where  the  promise  is  made  by  one  who  has  received  property  of  another 
upon  an  undertaking  to  apply  it  pursuant  to  such  promise;  or  by  one  who  has 
received  a  discharge  from  an  obligation  in  whole  or  in  part,  in  consideration  of 
such  j)romise; 

2.  Where  the  creditor  parts  with  value,  or  enters  into  an  obligation,  in  con" 
sideration  of  the  obligation  in  respect  to  which  the  promise  is  made,  in  terms 
or  under  circumstances  such  as  to  render  the  party  making  the  promise  the 
principal  debtor,  and  the  person  in  whose  behalf  it  is  made  his  surety; 

3.  Where  the  promise,  being  for  an  antecedent  obligation  of  another,  is  made 
upon  the  consideration  that  the  party  receiving  it  cancels  the  antecedent  obliga- 
tion, accepting  the  new  promise  as  a  substitute  therefor;  or  upon  the  considera- 
tion that  the  party  receiving  it  releases  the  property  of  another  from  a  lexj,  or 

vis  person  from  imprisonment  under  an  execution  on  a  judgment  obtained  upon 
*ie  antecedent  obligation;  or  upon  a  consideration  beneficial  to  the  promisor, 
■hether  moving  from  either  party  to  the  antecedent  obligation,  or  from  another 
Jrson; 

t.  Where  a  factor  undertakes,  for  a  commission,  to  sell  merchandise  and 
g\ranty  the  sale; 

\  Where  the  holder  of  an  instrument  for  the  payment  of  money,  upon  which 
a  tird  person  is  or  may  become  liable  to  him,  transfers  it  in  payment  of  a  pre- 
ce<Vit  debt  of  his  own,  or  for  a  new  consideration,  and  in  connection  with  such 
traifer  enters  into  a  promise  respecting  such  instrument. 

779*  Acceptance  of  guaranty. 

Sb  2795.  A  mere  offer  to  guaranty  is  not  binding,  until  notice  of  its  accept- 
ance communicated  by  the  guarantee  to  the  guarantor;  but  an  absolute  guar- 
anty ^binding  upon  the  guarantor  without  notice  of  acceijtance. 

\  ARTICLE  III. 

INTERPRETATION    OF    GUARANTY, 

7799.   taranty  of  incomplete  contract. 

Sec  ^9.  in  a  guaranty  of  a  contract,  the  terms  of  which  are  not  then  set- 
tled, it  ibplied  that  its  terms  shall  be  such  as  will  not  expose  the  guarantor 

841 


7799-7815  CIVIL  CODE. 

to  gfi-eater  risks  than  he  -woukl  incur  under  those  terms  which  are  most  common 
in  similar  contracts  at  the  place  where  the  principal  contract  is  to  he  per- 
formed. 

7800.  Guaranty  that  an  oUigation  is  good  or  collectible. 

Sec.  2800.  A  guaranty  to  the  effect  that  an  obligation  is  good,  or  is  collect- 
ible, imports  that  the  debtor  is  solvent,  and  that  the  demand  is  collectible  by 
the  usual  legal  proceedings,  if  taken  with  reasonable  diligence. 

7801.  Recovery  upon  such  guaranty. 

Sec.  2801.  A  guaranty,  such  as  is  mentioned  in  the  last  section,  is  not  dis- 
charged by  an  omission  to  take  proceedings  upon  the  princij^al  debt,  or  upon 
any  collateral  security  for  its  payment,  if  no  part  of  the  debt  could  have  been 
collected  thereby. 

7802.  Guarantor's  liability  upon  such  guaranty. 

Sec.  2802.  In  the  cases  mentioned  in  section  2800,  the  removal  of  the  prin- 
cipal from  the  state,  leaving  no  property  therein  from  which  the  obligation 
might  be  satisfied,  is  equivalent  to  the  insolvency  of  the  principal  in  its  effect 
upon  the  rights  and  obligations  of  the  guarantor. 

ARTICLE  IV. 

LIABILITY    OF    GUARANTORS. 

7806.  Guaranty,  hoiv  construed. 

Sec.  2806.  A  guaranty  is  to  be  deemed  unconditional  unless  its  terms  im- 
port some  condition  jirecedent  to  the  liability  of  the  guarantor. 

7807.  Liability  upon  guaranty  of  payment  or  pierformance. 

Sec  2807.  A  guarantor  of  payment  or  j)erformance  is  liable  to  the  guarantee 
immediately  upon  the  default  of  the  princijDal,  and  without  demand  or  notice. 

7808.  Liability  upon  guaranty  of  a  conditional  obligation. 

Sec.  2808.  Where  one  guarantees  a  conditional  obligation,  his  liability  is 
commensurate  with  that  of  the  principal,  and  he  is  not  entitled  to  notice  of  the 
default  of  the  principal,  unless  he  is  unable,  by  the  exercise  of  reasonable  dili 
gence,  to  acquire  information  of  such  default,  and  the  creditor  has  actual  notic 
thereof. 

7808.   OlAigation  of  guarantor  cannot  exceed  that  of  ptrincipal. 

Sec.  2809.  The  obligation  of  a  guarantor  must  be  neither  larger  in  amout 
nor  in  other  respects  more  burdensome  than  that  of  the  jn-incipal;  and  if  ints 
terms  it  exceeds  it,  it  is  reducible  in  proportion  to  the  principal  obligation. 
7810.   Guarantor  not  liable  on  an  illegal  contract. 

Sec  2810.  A  guarantor  is  not  liable  if  the  contract  of  the  principal  is  uriw- 
ful;  but  he  is  liable  notwithstanding  any  mere  personal  disability  of  thei'in- 
cipal,  though  the  disability  be  such  as  to  make  the  contract  void  again;  the 
principal. 

ARTICLE  V. 

CONTINUING     GUARANTY. 

7814.  Continuing  guaranty,  vhat. 

Sec  2814.  A  guaranty  relating  to  a  future  liability  of  the  principr  under 
successive  transactions,  which  either  continue  his  liability  or  from  timto  time 
renew  it  after  it  has  been  satisfied,  is  called  a  continuing  guaranty. 

7815.  Revocation. 

Sec  2815.  A  continuing  guaranty  may  be  revoked  at  any  time  \r^^  guar- 
antor, in  respect  to  future  transactioiis,  unless  there  is  a  continuin  consider- 
ation as  to  such  transactions  which  he  does  not  renounce. 

842 


GUAEANTY.  7819-7832 

ARTICLE  VI. 

EXONEEATION  OF  GUARANTORS. 

7819.  What  dealings  icWi  debtor  exonerate  cjuarardor. 

Sec.  2819.  A  guarantor  is  exonerated,  except  so  far  as  he  may  he  indemnified 
by  the  principal,  if  by  any  act  of  the  creditor,  without  the  consent  of  the  guar- 
antor, the  original  obligation  of  the  principal  is  altered  in  any  respect,  or  the 
remedies  or  rights  of  the  creditor  against  the  principal,  in  respect  thereto,  in 
any  way  impaired  or  suspended. 

7820.  Void  promises. 

Sec.  2820.  A  promise  by  a  creditor,  which  for  xny  cause  is  void,  or  voidable 
by  him  at  his  option,  does  not  alter  the  obligation,  or  suspend  or  impair  the 
remedy,  within  the  meaning  of  the  last  section. 

7821.  Rescission  of  alteration. 

Sbc.  2821.  The  rescission  of  an  agreement  altering  the  original  obligation  of 
a  debtor,  or  impairing  the  remedy  of  a  creditor,  does  not  restore  the  liability  of 
a  guarantor  who  has  been  exonerated  by  such  agreement. 

7822.  Part  performance. 

Sec.  2822.  The  acceptance,  by  a  creditor,  of  anything  in  partial  satisfaction 
of  an  obligation,  reduces  the  obligation  of  a  guarantor  thereof  in  the  same 
measure  as  that  of  the  principal,  but  does  not  otherwise  affect  it. 

7823.  Delay  of  creditor  does  not  discharge  guarantor. 

Sec  2823.  Mere  delay  on  the  part  of  a  creditor  to  proceed  against  the  prin- 
cipal, or  to  enforce  any  other  remedy,  does  not  exonerate  a  guarantor. 

7824.  Guarantor  indemnified  by  the  debtor,  not  exonerated. 

Sec.  2824.  A  guarantor,  who  has  been  indemnified  by  the  principal,  is  liable 
to  the  creditor  to  the  extent  of  the  indemnity,  notwithstanding  that  the  creditor, 
without  the  assent  of  the  guarantor,  may  have  modified  the  contract  or  released 
the  principal. 

7825.  Discharge  of  principal  by  act  of  law  does  not  discharge  guarantor. 

Sec.  2825.  A  guarantor  is  not  exonerated  by  the  discharge  of  his  pi-incipal 
by  operation  of  law,  without  the  intervention  or  omission  of  the  creditor. 

CHAPTEE  II. 

SURETYSHIP. 

Akticle  I.  Who  are  Sureties 7831 

II.  Liability  of   Sureties 7S26 

III.  Rights  of  Sureties '^^^^ 

IV.  Eights  of  Creditors IH^A 

V.  Letter  of  Credit ISdS 

ARTICLE  I. 

WHO   ARE    SURETIES. 

7831.  Sxirety,  what. 

Sec  2831.  A  surety  is  one  who  at  the  request  of  another,  and  for  thepuii^ose 
of  securing  to  him  a  benefit,  becomes  responsible  for  the  performance  by  the 
latter  of  some  act  in  favor  of  a  third  person,  or  hypothecates  property  as  secu- 
rity therefor. 

7832.  Apparent  principal  may  show  that  he  is  surety. 

Sec  2832.  One  who  appears  to  be  a  principal,  whether  by  the  terms  of  a 
written  instrument  or  otherwise,  may  show  that  he  is  in  fact  a  surety,  except 
as  against  persons  who  have  acted  on  the  faith  of  his  apparent  character  of 

principal. 

813 


7836-7848  CmL  CODE. 

ARTICLE   II. 

LIABILITY    OF    SURETIES. 

7836.  Limit  of  surety's  obligntion. 

Sec.  2836.  A  surety  cauuot  be  held  beyond  the  express  terras  of  bis  contract, 
and  if  such  contract  prescribes  a  penalt}'  for  its  breach,  he  cannot  in  any  case 
be  liable  for  more  than  the  penalty. 

7837.  Rules  of  interpretation. 

Sec.  2837.  In  interi:)reting  the  terms  of  a  contract  of  suretyship,  the  same 
rules  are  to  be  observed  as  in  the  case  of  other  contracts. 

7838.  Judgment  against  surety  does  not  alter  the  relation. 

Sec  2838.  Notwithstanding  the  recovery  of  judgment  by  a  creditor  against  a 
surety,  the  latter  still  occupies  the  relation  of  surety. 

7839.  Surety  exonerated  by  j^f^rformance  or  offer  of  performance. 

Sec  2839.  Performance  of  the  principal  obligation,  or  an  ofifer  of  such"  per- 
formance, duly  made  as  provided  in  this  code,  exonerates  a  surety.  [Amend- 
ment, approved  March  30, 1874;  Amendments  1873-4,  260;  took  effect  July  1, 1874.^"' 

7840.  Surety  discharged  by  certain  acts  of  the  creditor. 
Sec  2840.  A  surety  is  exonerated — 

1.  In  like  manner  with  a  guarantor; 

2.  To  the  extent  to  which  he  is  prejudiced  by  any  act  of  the  creditor  which 
would  naturally  prove  injurious  to  the  remedies  of  the  surety  or  inconsistent 
with  his  rights,  or  which  lessens  his  security;  or, 

3.  To  the  extent  to  which  he  is  prejudiced  by  an  omission  of  the  creditor  to 
do  anything,  when  requu-ed  by  the  surety,  which  it  is  his  duty  to  do. 

ARTICLE  III. 

RIGHTS    OE    SURETIES. 

7844.  Surety  has  rights  of  guarantor. 

Sec  2844.  A  siu-ety  has  all  the  rights  of  a  guarantor,  whether  he  becomes 
personally  responsible  or  not. 

7845.  Surety  may  require  creditor  to  proceed  against  principal. 

Sec  2845.  A  surety  may  require  his  creditor  to  proceed  against  the  principal, 
or  to  pursue  any  other  remedy  in  his  jiower  which  the  surety  cannot  himself 
pursue,  and  which  would  lighten  his  burden;  and  if  in  such  case  the  creditor 
neglects  to  do  so,  the  surety  is  exonerated  to  the  extent  to  which  he  is  thereby 
prejudiced . 

7846.  Surety  may  compel  principal,  etc. 

Sec  2846,  A  surety  may  compel  his  jDiincipal  to  perform  the  obligation  when 
due. 

7847.  A  p)rincipal  bound  to  reimburse  his  surety. 

Sec.  2847.  If  a  surety  satisfies  the  principal  obligation,  or  any  part  thereof, 
whether  with  or  without  legal  proceedings,  the  principal  is  bound  to  reimburse 
what  he  has  disbursed,  including  necessary  costs  and  exj^enses;  but  the  surety 
has  no  claim  for  reimbursement  against  other  persons,  though  they  may  have 
been  benefited  by  his  act,  except  as  prescribed  by  the  next  section. 

7848.  The  surety  acquires  the  rigid  of  the  creditor. 

Sec  2848.  A  surety,  upon  satisfying  the  obligation  of  the  piincipal,  is  enti- 
tled to  enforce  every  remedy  which  the  creditor  then  has  against  the  ]:)riucij)al 

(a)  The  original  Bectlon,  inijtea'l  of  "  as  provided  in  this  code,"  had  the  words  "  whether  by  the  ijrinciiial  or 
by  another  penwn." 

844 


GUARANTY.  7818-7864 

to  the  extent  of  rciinbursing  wliat  be  Las  expended,  and  also  to  require  all  his 
co-sureties  to  contribute  thereto,  •without  regard  to  the  order  of  time  in  which 
they  became  such. 

7849.  Surety  entitled  to  benefit  of  securities  held  by  creditor. 

Sec.  2849.  A  surety  is  entitled  to  the  benefit  of  every  security  for  the  per- 
formance of  the  principal  obligation  held  by  the  creditor,  or  by  a  co-surety  at 
the  time  of  entering  into  the  contract  of  suretyship,  or  acquired  by  him  utter- 
wards,  whether  the  surety  was  aware  of  the  secmity  or  not. 

7850.  The  projicrty  of  princijxd  to  be  taken  firat. 

Sec.  2850.  Whenever  property  of  a  surety  is  hypothecated  with  property  of 
the  principal,  the  surety  is  entitled  to  have  the  j)roperty  of  the  principal  first 
applied  to  the  discharge  of  the  obligation. 

ARTICLE  rV. 

EIGHTS   OP    CREDITORS. 

7854.   Creditor  entitled  to  benefit  of  securities  held  by  surety. 

Sec.  2854.  A  creditor  is  entitled  to  the  benefit  of  everything  which  a  surety 
has  received  from  the  debtor  by  way  of  security  for  the  performance  of  the  obli- 
gation, and  may,  upon  the  maturity  of  the  obligation,  compel  the  ajjplication 
of  such  security  to  its  satisfaction. 

ARTICLE  V. 

letter  of  credit. 

7858.  Letter  of  credit,  ivhat. 

Sec  2858.  A  letter  of  credit  is  a  written  instrument,  addressed  by  one  person 
to  another,  requesting  the  latter  to  give  credit  to  the  person  in  whose  favor  it  is 
drawn. 

7859.  Hoio  addressed. 

Sec.  2859.  A  letter  of  credit  may  be  addressed  to  several  persons  in  suc- 
cession. 

7860.  Liability  of  the  xoriter. 

Sec  2860.  The  writer  of  a  letter  of  credit  is,  ui:>on  the  default  of  the  debtor, 
liable  to  those  who  gave  credit  in  compliance  with  its  terms. 

7861.  Letters  of  credit  either  general  or  special. 

Sec  2861.  A  letter  of  credit  is  either  general  or  special.  When  the  request 
for  credit  in  a  letter  is  addressed  to  specified  persons  by  name  or  desciiption, 
the  letter  is  special.     All  other  letters  of  credit  are  general. 

7862.  Nature  of  general  letter  of  credit. 

Sec  2862.  A  general  letter  of  credit  gives  any  person  to  whom  it  may  be 
shown  authority  to  comply  with  its  request,  and  by  his  so  doing  it  becomes,  aa 
to  him,  of  the  same  effect  as  if  addressed  to  him  by  name. 

7863.  Extent  of  general  letter  of  credit. 

Sec  2863.  Several  persons  may  successively  give  credit  upon  a  general 
letter. 

7864.  A  letter  of  credit  may  be  a  continuing  guaranty. 

Sec  2864,  If  the  parties  to  a  letter  of  credit  appear,  by  its  terms,  to  contem- 
plate a  course  of  future  dealing  between  the  parties,  it  is  not  exhausted  by 
giving  a  credit,  even  to  the  amount  limited  by  the  letter,  which  is  subsequently 
reduced  or  satisfied  by  j)aynients  made  by  the  debtor,  but  is  to  be  deemed  a 
continuing  guaranty. 

845 


7865-7876  CIYIL  CODE. 

7865.  When  notice  to  the  writer  necessary. 

Sec.  28G5.  The  writer  of  a  letter  of  credit  is  liable  for  credit  given  upon  it 
"without  notice  to  him,  unless  its  terms  express  or  imply  the  necessity  of  giving 
notice. 

7866.  The  credit  given  must  agree  ivilh  the  terms  of  the  letter. 

Sec.  2866.  If  a  letter  of  credit  prescribes  the  persons  by  whom,  or  the  mode 
in  which,  the  credit  is  to  be  given,  or  the  term  of  credit,  or  limits  the  amount 
thereof,  the  writer  is  not  bound  except  for  transactions  which,  in  these  respects, 
conform  strictlv  to  the  terms  of  the  letter. 


TITLE  XIV. 


§mu 


Chajptee  I.  Liens  rN  General 7872 

•II.  Mortgage 7920 

III.  Pledge 7986 

IV.  Bottomry 8017 

V.  Respondentlv. 8036 

VI.  Other  Liens 8046 

VII.  Stoppage  in  Transit 8076 

CHAPTER  I. 

LIENS   IN   GENERAL. 

Article  I.  Definition  op  Liens 7872 

II.  Cekation  of  Liens 7881 

III.  Effect  of  Liens 7888 

IV.  Peioeity  of  Liens 7897 

V.  Eedemption  feom  Liens 7903 

VI.  Extinction  of  Liens 7909 

ARTICLE  I. 

DEIINITION      nV      TTT7XTO 

g  2872.   Insert  after  "imposed,"  "  in  some  mode  other  than 
by  a  transfer  in  trust."     [In  effect  April  16,  1878.     §  1180  C.  property    by  whicll  it  is 

C.  P.  was  the  same  as  this  section,  and  is  not  amended.]  '■      ■'■        J '     >/ 

7873.  Liens,  general  or  special. 

Sec.  2873.  Liens  are  either  general  or  special. 

7874.  General  lien,  what. 

Sec.  2874.  A  general  lien  is  one  w^hich  the  holder  thereof  is  entitled  to  en- 
force as  a  security  for  the  performance  of  all  the  obligations,  or  all  of  a  partic- 
ular class  of  obligations,  which  exist  in  his  favor  against  the  owner  of  the 
property. 

7875.  Special  lien,  what. 

Sec.  2875.  A  special  lien  is  one  which  the  holder  thereof  can  enforce  only  as 
security  for  the  performance  of  a  particular  act  or  obligation,  and  of  such  obli- 
gations as  may  be  incidental  thereto. 

7876.  Prior  liens. 

Sec.  2876.  Where  the  holder  of  a  special  lien  is  compelled  to  satisfy  a  prior 
lien  for  his  own  protection,  he  may  enforce  payment  of  the  amount  so  paid  by 
him,  as  a  part  of  the  claim  for  which  his  own  lien  exists. 

846 


LIEN.  7877-7898 

7877.   Conti-acts  subject  to  provisions  of  this  chapter. 

Sec.  2877.  Contracts  of  mortgage,  pledge,  Lottomn',  or  respondentia,  are 
subject  to  all  the  provisions  of  tLis  chapter. 

ARTICLE  II. 

CllEATION    OF    LIEXS. 

7881.  Lien,  how  created. 

Sec.  2881.  A  lien  is  created: 

1.  By  contract  of  the  parties;  or, 

2.  By  operation  of  law. 

7882.  No  lien  for  claim  not  due. 

Sec.  2882.  No  lien  arises  by  mere  operation  of  law  until  the  time  at  which 
the  act  to  be  secured  thereby  ought  to  be  performed. 

7883.  Lien  on  future  interest. 

Sec.  2883.  An  agreement  may  be  made  to  create  a  lien  upon  property  not  yet 
acquired  by  the  party  agreeing  to  give  the  lien,  or  not  yet  in  existence.  In  such 
case  the  lien  agreed  for  attaches  from  the  time  when  the  party  agreeing  to  give 
it  acquires  an  interest  in  the  thing,  to  the  extent  of  such  interest. 

7884.  Lien  may  be  created  by  contract. 

Sec.  2884.  A  lien  may  be  created  by  contract,  to  take  immediate  effect,  as 
security  for  the  performance  of  obligations  not  then  in  existence. 

ARTICLE  III. 

EFFECT    OF    LIENS. 

7888.  Lien,  or  contract  for  lien,  transfers  no  title. 

Sec  2888.  Notwithstanding  an  agreement  to  the  contrary,  a  lien,  or  a  con- 
tract for  a  lien,  transfers  no  title  to  the  property  subject  to  the  lien. 

7889.  Certain  contracts  void. 

Sec.  2889.  All  contracts  for  the  forfeiture  of  propert}'  subject  to  a  lien,  in 
satisfaction  of  the  obligation  secured  thereby,  and  all  contracts  in  restraint  of 
the  right  of  redemption  from  a  lien,  are  void. 

7890.  Creation  of  lien  does  not  imply  personal  obligation. 

Sec.  2890.  The  creation  of  a  lien  does  not  of  itself  imply  that  any  person  is 
bound  to  perform  the  act  for  which  the  lien  is  a  security. 

7891.  Uxtent  of  lien. 

Sec.  2891.  The  existence  of  a  lien  upon  property  does  not  of  itself  entitle  the 
person  in  whose  favor  it  exists  to  a  lien  upon  the  same  property  for  the  perform- 
ance of  any  other  obligation  than  that  which  the  lien  originally  secured. 

7892.  Holder  of  lien  not  entitled  to  compensation. 

Sec.  2892.  One  who  holds  property  by  virtue  of  a  lien  thereon,  is  not  entitled 
to  compensation  from  the  owner  thereof  for  any  trouble  or  expense  which  he 
incurs  respecting  it,  except  to  the  same  extent  as  a  borrower,  under  sections 
1892  and  1893. 

ARTICLE  IV. 

PRIORITY    OF    LIENS. 

7897.  Priority  of  liens. 

Sec.  2897.  Other  things  being  equal,  different  liens  upon  the  same  property 
have  priority  according  to  the  time  of  their  creation,  except  in  cases  of  bottomry 
and  respondentia. 

7898.  Priority  of  mortgage  for  price. 

Sec.  2898.  A  mortgage  given  for  the  price  of  real  property,  at  the  time  of  its 

847 


7898-7911  CIVIL  CODE. 

conveyance,  has  i)riority  over  all  other  liens  created  against  the  purchaser,  sub- 
ject to  the  operation  of  the  recording  laws. 
7899.   Order  of  resort  to  different  funds. 

Sec.  2899.  Where  one  has  a  lien  upon  several  things,  and  other  persons  have 
subordinate  liens  upon,  or  interests  in,  some  but  not  all  of  the  same  things, 
the  person  having  the  prior  lien,  if  he  can  do  so  -without  risk  of  loss  to  himself, 
or  of  injustice  to  other  persons,  must  resort  to  the  property  in  the  following 
order,  on  the  demand  of  any  party  interested : 

1.  To  the  things  ujdou  which  he  has  an  exclusive  lien; 

2.  To  the  things  which  are  subject  to  the  fewest  subordinate  liens; 

3.  In  like  manner  inversely  to  the  number  of  subordinate  liens  upon  the  same 
thing;  and, 

4.  "When  several  things  are  within  one  of  the  foregoing  classes,  and  subject 
to  the  same  number  of  liens,  resort  must  be  had — 

(1.)  To  the  things  which  have  not  been  transferred  since  the  prior  lien  was 
created; 

(2.)  To  the  things  which  have  been  so  transferred  without  a  valuable  consid- 
eration; and, 

(3.)  To  the  things  which  have  been  so  transferred  for  a  valuable  consideration 
in  the  inverse  order  of  the  transfer. 

ARTICLE  V. 

EEDEMPTION    FEOM   LIEN. 

7903.  PdgU  to  redeem. 

Sec.  2903.  Every  person,  ha^dng  an  interest  in  property  subject  to  a  lien,  has 
a  right  to  redeem  it  from  the  lien,  at  any  time  after  the  claim  is  due,  and  before 
his  right  of  redemption  is  foreclosed. 

7904.  Rights  of  inferior  lienor. 

Sec.  2904.  One  who  has  a  lien  inferior  to  another,  upon  the  same  property, 
has  a  right: 

1.  To  redeem  the  property  in  the  same  manner  as  its  owner  might,  from  the 
superior  lien;  and, 

2.  To  be  subrogated  to  all  the  benefits  of  the  superior  lien,  when  necessary 
for  the  protection  of  his  interests,  upon  satisfying  the  claim  secured  thereby. 

7905.  Redemption  from  lien,  hoiv  made. 

Sec  2905.  Redemption  from  a  lien  is  made  by  performing,  or  offering  to 
perform,  the  act  for  the  perfoi'mance  of  which  it  is  a  security,  and  jmying,  or 
offering  to  pay,  the  damages,  if  any,  to  which  the  holder  of  the  lieu  is  entitled 
for  delay. 

ARTICLE  YI. 

EXTINCTIOX   OF   LIENS. 

7909.  Lien  deemed  accessory  to  act  whose  performance  it  secures. 

Sec.  2909.  A  lien  is  to  be  deemed  accessory  to  the  act  for  the  performance  of 
which  it  is  a  securitj',  whether  any  person  is  bound  for  such  performance  or 
not,  and  is  extinguishable  in  like  manner  with  any  other  accessory  obligation. 

7910.  Extinction  by  sale  or  conversion. 

Sec.  2910.  The  sale  of  any  property  on  which  there  is  a  lieu,  in  satisfaction 
of  the  claim  secured  thereby,  or  in  case  of  personal  property,  its  wrongful  con- 
version by  the  person  holding  the  lien,  extinguishes  the  lien  thereon. 

7911.  Lien  extinguished  by  lapse  of  time  uiuhr  statute  of  limitations. 

Sec  2911.  Alien  is  distinguished  by  the  lapse  of  the  time  within  which, 

848 


LIEN.  7911-7925 

under  tlie  provisions  of  the  Code  of  Civil  Procedure,  can  action  can  be  brought 
uj^ou  the  jDrincipal  obligation. 

7912.  Appo7'tionment  of  lien. 

Sec.  2912.  The  partial  performance  of  an  act  secured  by  a  lien  does  not  ex- 
tinguish the  lien  ujion  any  part  of  the  i:)roperty  subject  thereto,  even  if  it  is 
divisible. 

7913.  Bestoration  of  property  extinguishes  lien. 

Sec.  2913.  The  voluntary  restoration  of  property  to  its  owner  l.)y  the  holder 
of  a  lien  thereon,  dependent  upon  possession,  extinguishes  the  lien  as  to  such 
property,  unless  otherwise  agreed  by  the  parties,  and  extinguishes  it,  notwith- 
standing any  such  agreement,  as  to  creditors  of  the  OAvner  and  persons  subse- 
quently acquiring  a  title  to  the  jDroperty,  or  a  lien  thereon,  in  good  faith,  and 
for  a  good  consideration.  [Amendment,  approved  3Iarch  30,  1874;  Amendments 
1873-4,  260;  took  effect  July  1,  1874.^^' 

CHAPTEE  II. 

MORTGAGE. 

Aeticle   I.  MoETGAGES  IN  Geneeal 7920 

II.  MoETGAGEs  OF  Real  Peopeuty 7947 

III.  Mortgages  of  Peesonal  Pkopeexy 7955 

AETICLE  I. 

MORTGAGES    IN    GENERAL. 

7920.  Mortgage,  what. 

Sec.  2920.  Mortgage  is  a  contract  by  which  specific  property  is  hypothecated 
for  the  performance  of  an  act,  without  the  necessity  of  a  change  of  possession. 

7921.  Prope^'ty  adversely  held,  may  he  mortgaged. 

Sec.  2921.  A  mortgage  may  be  created  upon  jjroperty  held  adversely  to  the 
mortgagor. 

7822.   To  he  in  writing. 

Sec.  2922.  A  mortgage  can  be  created,  renewed,  or  extended,  only  by  writing, 
executed  with  the  formalities  required  in  the  case  of  a  grant  of  real  property. 

7923,  Lien  of  a  mortgage,  lohen  special. 

Sec.  2923,  The  lien  of  a  mortgage  is  special,  unless  othenvise  expressly 
agreed,  and  is  independent  of  possession, 

7924,  Transfer  of  interest  ivhen  deemed  a  mortgage. 

Sec.  2924.  Every  transfer  of  an  interest  in  property,  other  than  in  trust, 
made  only  as  a  security  for  the  performance  of  another  act,  is  to  be  deemed  a 
mortgage,  except  when  in  the  case  of  personal  property  it  is  accomi^anied  by 
actual  change  of  possession,  in  Avhich  case  it  is  deemed  a  pledge.  [Amotdment, 
approved  March  30,  1874;  Amendments  1873-4,  2G0;  took  efect  July  1,  1874.^''> 

7925,  Transfer  made  subject  to  defeasance  may  he  proved. 

Sec.  2925.  The  fact  that  a  transfer  was  made  subject  to  defeasance  on  a  con- 
dition, may,  for  the  purpose  of  showing  such  transfer  to  be  a  mortgage,  be 
proved  (except  as  against  a  subsequent  purchaser  or  incumbrancer  for  value 
and  without  notice),  though  the  fact  does  not  appear  by  the  tenns  of  the  in- 
strument. 

(a)  The  original  section  did  not  have  the  word  "  sub-  merely  transient  purpose." 

8e<iuently,"but  it  had  an  additional  clause  at  the  end  as  (6)  Thw   original  section  did  not  have  the  words 

follows:  "  unless  such  restoration  is  made  to  the  owner  "  other  than  in  trust." 
as  a  mere  employee  of  the  holder  of  the  lien,  or  for  a 

58  849 


792G-7936  CIVIL  CODE. 

7926.  Mortgage,  on  what  lien. 

Sec.  2926.  A  mortgage  is  a  lien  iipon  everything  that  would  pass  by  a  grant 
of  the  property. 

7927.  Mortgage  does  not  entitle  mortgagee  to  jiossession. 

Sec.  2927.  A  mortgage  does  not  entitle  the  mortgagee  to  the  possession  of 
the  property,  iinless  authorized  by  the  express  terms  of  the  mortgage;  but 
after  the  execution  of  the  mortgage  the  mortgagor  may  agree  to  such  change  of 
possession  without  a  new  consideration. 

7928.  'Mortgage  not  a  permnal  obligation. 

Sec  2928.  A  mortgage  does  not  bind  the  mortgagor  personally  to  perform 
the  act  for  the  performance  of  which  it  is  a  security,  unless  there  is  an  express 
covenant  therein  to  that  effect. 

7929.  TFfl.sfe. 

Sec  2929.  No  person  whose  interest  is  subject  to  the  lien  of  a  mortgage  may 
do  any  act  which  will  substantially  impair  the  mortgagee's  security. 

7930.  Subsequently  acquired  title  inures  to  mortgagee. 

Sec.  2930.  Title  acquired  by  the  mortgagor  subsequent  to  the  execution  of 
the  mortgage,  inures  to  the  mortgagee  as  security  for  the  debt  in  like  manner 
as  if  acquired  before  the  execution.  {Amendment,  approved  March  30,  1874; 
Amendments  1873-4,  2G0;  took  effect  July  1,  1874.^^^ 

7931.  Foreclosure. 

Sec  2931.  A  mortgagee  may  foreclose  the  right  of  redemption  of  the  mort- 
gagor in  the  manner  prescribed  by  the  Code  of  Civil  Procedure. 

7932.  Power  of  sale. 

Sec  2932.  A  power  of  sale  may  be  conferred  by  a  mortgage  upon  the  mort- 
gagee or  any  other  person,  to  be  exercised  after  a  breach  of  the  obligation  for 
which  the  mortgage  is  a  security. 

7933.  Foicer  of  attorney  to  execute. 

Sec  2933.  A  power  of  attorney  to  execute  a  mortgage  must  be  in  writing, 
subscribed,  acknowledged,  or  proved,  certified,  and  recorded  in  like  manner 
as  powers  of  attorney  for  grants  of  real  property. 

7934.  Record  of  assignment  of  mortgage  as  notice. 

Sec  2934.  An  assignment  of  a  mortga,ge  may  be  recorded  in  like  manner  as  a 
mortgage,  and  such  record  operates  as  notice  to  all  persons  subsequently  deriv- 
ing title  to  the  mortgage  from  the  assignor.  [Amendment,  approved  March  30, 
1874;  Amendments  1873-4,  2G1;  took  effect  July  1,  1874."" 

7935.  'When  not  notice  to  morigagor. 

Sec  2935.  AVhen  the  mortgage  is  executed  as  security  for  money  due,  or  to 
become  due,  on  a  promissory  note,  bond,  or  other  instrument,  designated  in 
the  mortgage,  the  record  of  the  assignment  of  the  mortgage  is  not,  of  itself, 
notice  to  a  mortgagor,  his  heirs  or  personal  representatives,  so  as  to  invalidate 
any  payment  made  by  them,  or  either  of  them,  to  the  person  holding  such 
note,  bond,  or  other  instrument.  [Amendment,  approved  March  30, 1874;  Amend- 
ments 1873-4,  261;  took  effect  July  1,  1874.^'=> 

7936.  Mortgage  passes  by  assignment  of  drht. 

Sec.  2930.  The  assignment  of  a  debt  secured  by  mortgage  carries  with  it  the 
ecurity. 

(a)  The  original  fiection  had  the  following  arldi-  (c)  Original  section: 
tional  Beutence:  "The  priority  of  ai»i)lication  of  such  Sec.  2!):)').  The  record  of  the  assignment  of  a  mort- 
subseciui  iitly  a'  quired  title  to  BuccephiveuiortgagotB  ia  gage  is  not  of  itself  notice  to  a  mortgagor,  his  heirs  or 
deteriiiiii'-d  Vjy  the  existing  rules  of  priority,  when  no  personal  representatives,  bo  as  to  iuvalidati-  any  pay- 
title  ia  subsequf-ntly  acquired."  nient  made  by  them,  or  either  of  Ihem,  to  the  mort- 

(6)  The  original  secti'.in,  instead  of  "  as  a  mortgage,"  gagee. 
had  the  words  "  with  a  mortgage,  but  in  a  separate 
book." 

850 


LIEN.  7937-7947 

7937.  [Sec.  2937'"^  was  repealed  by  act  approved  March  30, 1874;  Amendineuts 
1873-4,  261;  took  effect  July  1,  1874.] 

7938.  Mortgage,  how  discharged. 

Sec.  2938.  A  recorded  mortgage  may  be  discharged  by  an  entry  iu  the  margin 
of  the  record  thereof,  signed  by  the  mortgagee,  or  his  personal  representative 
or  assignee,  acknowledging  the  satisfaction  of  the  mortgage  in  the  presence  of 
the  recorder,  who  must  certify'  the  acknowledgment  in  form  substantially  as 

follows:  "  Signed  and  acknowledged  before  me,  this day  of  ,  in  the 

year .  A.  B.,  Recorder." 

7939.  Same. 

Sec  2939.  A  recorded  mortgage,  if  not  discharged  as  provided  in  the  pre- 
ceding section,  must  be  discharged  uj^on  the  record  by  the  officer  having  custody 
thereof,  on  the  presentation  to  him  of  a  certificate  signed  by  the  mortgagee,  his 
personal  repi^esentatives  or  assigns,  acknowledged  or  proved  and  certified  as 
prescribed  by  the  chapter  on  recording  transfers,  stating  that  the  mortgage  has 
been  paid,  satisfied,  or  discharged. 

7940.  Same. 

Sec  2940.  A  certificate  of  the  discharge  of  a  mortgage,  and  the  proof  or 
acknowledgment  thereof,  must  be  recorded  at  leugth,  and  a  reference  made  in 
the  record  to  the  book  and  j)age  where  the  mortgage  is  recorded,  and  in  the 
minute  of  the  discharge  made  upon  the  record  of  the  mortgage  to  the  book  and 
page  where  the  discharge  is  recorded. 

7941.  Duty  of  mortgagee  on  satisfaction  of  mortgage. 

Sec  2941.  When  any  mortgage  has  been  satisfied,  the  mortgagee  or  his 
assignee  must  immediately,  on  demand  of  the  mortgagor,  execute  and  deliver 
to  him  a  certificate  of  the  discharge  thereof,  and  must,  at  the  expense  of  the 
mortgagor,  acknowledge  the  execution  thereof  so  as  to  entitle  it  to  be  recorded , 
or  he  must  enter  satisfaction,  or  cause  satisfaction  of  such  mortgage  to  be  en- 
tered of  record;  and  any  mortgagee,  or  assignee  of  such  mortgage,  who  refuses 
to  execute  and  deliver  to  the  mortgagor  the  certificate  of  discharge,  and  to 
acknowledge  the  execution  thereof,  or  to  enter  satisfaction  or  cause  satisfaction 
to  be  entered  of  the  mortgage,  as  provided  in  this  chapter,  is  liable  to  the  mort- 
gagor, or  his  grantee  or  heirs,  for  all  damages  which  he  or  they  may  sustain  by 
reason  of  such  refusal,  and  also  forfeit  to  him  or  them  the  sum  of  one  hundred 
dollars.  [Amendment,  approved  March  30,  1874;  Amendments  1873-4,  261;  took 
efect  July  1,  1874.'"' 

7942.  Provisions  of  fliis  chapter  do  not  affect  bottomry  or  respondentia. 

Sec  2942.  Contracts  of  bottomry  or  respondentia,  although  in  the  nature  of 
mortgages,  are  not  affected  by  any  of  the  provisions  of  this  chapter. 

AETICLE  II. 

mortgage  of  real  property. 

7947.    Wliat  real  property  may  he  mortgaged. 

Sec  2947.  Any  interest  in  real  property  which  is  capable  of  being  transferred 
may  be  mortgaged. 

(a)  Repealed  section:  mortgagee  or  his  assignee  must  immediately,  on  de- 

Sec.  2937.  A  mortgagee  is  allowed,  from  the  date  of  mand  of  the  mortgagor,  enter  satisfaction  or  cause  sat- 

the  mortgage,  one  day  for  every  twenty  miles  of  the  isfaction  of  such  mortgage  to  be  entered  of  record;  and 

distance  between  hisresidence  and  the  county  recorder's  any   mortgagee   or  assignee  ot   such    mortgagee   who 

office  where  such  mortgage  ought  by  law  to  be  recorded,  neglects  or  refuses  to  enter  satisfaction  ot  such  mort- 

During  such  time  the  mortgage  has  the  same  effect  as  gage,  as  is  iirovlded  in  this  chapter,  is  liable  in  dam- 

if  recorded  ages  to  such  mortgagor,  or  his  grantee  or  hens,  in  the 

(6)   Original  section:  sum  of  oi>e  hundred  dollars,  to  be  recovered  in  a  civil 

Sec.  2941.  When  any  mortgage  has  been  satisaed,  the  action  before  any  court  of  competent  jurisdiction. 

851 


7948-7955  CIYIL  CODE. 

7948.  Form  of  mortgage. 

Sec.  2948.  A  mortgage  of  real  property  may  be  made  in  substantially  the 
following  form : 

This  mortgage,  made  the day  of ,  in  the  year  • ,  by  A.  B.,  of , 

mortgagor,  to  C.  D.,  of ,  mortgagee,  witnesseth: 

That  the  mortgagor  mortgages  to  the  mortgagee  [here  describe  the  property], 

as  security  for  the  payment  to  him  of  dollars,  on  for  before]  the day 

of  ,  in  the  year ,  with  interest  thereon  [or  as  security  for  the  payment 

of  an  obligation,  describing  it,  etc.]  A.  B. 

7949.  [Sec  2949'"' was  repealed  by  act  approved  March  30, 1874;  Amendments 
1873-4,  2G2;  took  effect  July  1,  1874.] 

7950.  Defeasance  to  affect  grant  absolute  on  its  face,  must  be  recoixled. 

Sec  2950.  When  a  grant  of  real  j)roperty  purports  to  be  an  absolute  convey- 
ance, but  is  intended  to  be  defeasible  on  the  performance  of  certain  conditions, 
such  grant  is  not  defeated  or  affected  as  against  any  person  other  than  the 
r'-rantee  or  his  heirs  or  devisees,  or  persons  having  actual  notice,  unless  an 
iustrument  of  defeasance,  duly  executed  and  acknowledged,  shall  have  been 
recorded  in  the  office  of  the  county  recorder  of  the  county  where  the  j^roperty 
is  situated. 

7951.  [Sec  2051'*'  was  repealed  by  act  approved  March  30, 1874;  Amendments 
1873-4,  2G2;  took  effect  July  1,  1874.] 

7952.  Record  of  mortgages. 

Sec  2952.  Mortgages  of  real  property  may  be  acknowledged  or  proved,  cer- 
titied  and  recorded  in  like  manner  and  with  like  effect,  as  grants  thereof. 
[Amendment,  aijproved  3Iarch  30,  1874;  Amendments  1873-4,  2G2;  took  effect  Jidy 
1,  1874.'=^ 

AETICLE  III. 

mortgage    of    personal    PEOPERTr.. 

7955.    What  personal  property  may  be  mortgaged. 
Sec  2955.  Mortgages  may  be  made  upon : 

"*"§  2955.     Seventh  line,  read  "surveyor"  instead  of  "sur-  ^  railroad; 

geon,"  and  add  :  "  Twelfth,  the  machinery,  casks,  pipes,  tubs,  3hinists,  foundrymen  and 

and   utensils   used  in  the  manufacture  of  wine,  fruit  brandy, 
and  fruit  syrup  or  sugar." 

4.  Mining  machinery; 

5.  Printing  presses  and  material; 

6.  Professional  libraries; 

7.  Instruments  of  a  surgeon,  physician  or  dentist; 

8.  Upholstery  and  furniture  used  in  hotels,  lodging  or  boarding-houses,  when 
mortgaged  to  secure  the  2:)urchase-mohey  of  the  articles  mortgaged; 

9.  Growing  crops; 

10.  Vessels  of  more  than  five  tons  burden; 

11.  Instruments,  negatives,  furniture  and  fixtures  of  a  photograph  gallery, 
[Amendment,  approved  April  3,  1870;  Amendments  1875-6,  79;  took  effect  sixtieth 
day  after  jjasmge.^'^'' 

(a)  Repealed  section :  witbout  reBorfinp:  to  the  escfutor  or  aclnilnistrator  of 

t-EC. 'i'J4'J.  Eveiy  grant  of  real  property,  or  of  any  the  imirtgat'iir,  unit  kb  tlitrc  in  an  expnps  direction  in 

f-state  therein,  wliicli  appears  by  any  other  writing  to  the  uill  <jt  (lie  inortgagor  that  the  mortgage  phall  be 

be  intended  as  a  mortgage,  UiUht  be  recorded  as  a  nurt-  othtrwite  paid. 

gage;  and  if  huch  grant  ui.d  other  writing  explauatoiy  (<)  The  i  riginal  section  had  the  following  addi- 

of  its  true  characttr  arc  not  re<<irded  togethi  r,  at  the  tional  dauFe  at  the  end:  "  but  they  miiBt  be  recorded 

same  time  and  place,  the  giantee  tan  derive  no  btufctit  in    boots  kept    for  mortgages    of   real  property  ex- 

frrm  su(  h  record.                                *  elusively." 

(/y)  ReiJtaled  settioii:  (d)  The  original    section   did  liot    have    the  -word 

Stc.  2951.  When  real  property,  subject  to  a  mortgage,  "  lodging  "  in  the  eighth  Bubdivisiou  or  any  part  of  the 

jiaBses  by  succession  or  -nill,  the  successor  or  devisee  eleventh  subdivision. 

must  bat'if.fy  the  moitgage  out  of  his  own  property, 

852 


LIEN.  795G-79G4 

7956.  Form  of  personal  morUjage. 

Sec.  2956.  A  mortg-age  of  personal  property  may  be  jnade  in  substantially 
the  following'  form : 

This  mortgage,  made  the day  of ,  in  the  year -,  by  A.  B.  of , 

by  occupation  a ,  mortgagor,  to  C.  D.  of ,  by  occupation  a ,  mort- 
gagee, -witnesseth: 

That  the  mortgagor  mortgages  to  the  mortgagee  [here  describe  the  property], 

as  security  for  the  payment  to  him  of dollars,  on  [or  before]  the day 

of ,  in  the  year ,  with  interest  thei'eon  [or,  as  security  for  the  payment 

of  a  note  or  obligation,  describing  it,  etc.]  A.  B. 

7957.  When  void  as  to  third  persons. 

Sec.  2957.  A  mortgage  of  personal  property  is  void  as  against  creditors  of 
the  mortgagor  and  subsequent  jiurchasers  and  incumbrancers  of  the  jDrojierty 
in  good  faith  and  for  value,  unless: 

1.  It  is  accompanied  by  the  affidavit  of  all  the  parties  thereto  that  it  is  made 
in  good  faith  and  without  any  design  to  hinder,  delay,  or  defraud  creditors; 

2.  It  is  acknowledged  or  proved,  certified,  and  recorded  in  like  manner  as 
grants  of  real  property. 

7958.  Mortgage  of  ships,  luhen  void  as  to  third  persons. 

Sec.  2958.  A  mortgage  of  any  vessel  or  part  of  any  vessel  under  the  flag  of 
the  United  States  is  void  as  against  any  person  (other  than  the  mortgagor,  his 
heirs,  and  devisee,  and  persons  having  actiaal  notice  thereof),  unless  the  mort- 
gage is  recorded  in  the  office  of  the  collector  of  customs  where  such  vessel  is 
registered  or  enrolled. 

7959.  Where  recorded. 

Sec  2959,  A  mortgage  of  personal  property  must  "be  recorded  in  the  office  of 
the  county  recorder  of  the  county  in  which  the  mortgagor  resides,  and  also  of 
the  county  in  which  the  property  mortgaged  is  situated,  or  to  which  it  may  be 
removed. 

7960.  Property  in  tran.nt,  where  to  he  recorded. 

Sec  2960.  For  the  purposes  of  this  article  pro^Derty  in  transit  from  the  pos- 
session of  the  mortgagee  to  the  county  of  the  residence  of  the  mortgagor,  or  to 
a  location  for  use,  is,  during  a  reasonable  time  for  such  transportation,  to  be 
taken  as  situated  in  the  county  in  which  the  mortgagor  resides,  or  where  it  is 
intended  to  be  used. 

7961.  Property  of  a  common  carrier,  where  to  he  recorded. 

Sec  2961.  For  a  like  purpose,  personal  property  used  in  conducting  tbe 
business  of  a  common  carrier  is  to  be  taken  as  situated  in  the  county  in  which 
the  principal  office  or  place  of  business  of  the  carrier  is  located. 

7962.  Recorded  in  different  places. 

Sec  2962.  A  single  mortgage  of  personal  property,  embracing  several  things 
of  such  character  or  so  situated  that  by  the  provisions  of  this  article  separate 
mortgages  upon  them  would  be  required  to  be  recorded  in  difterent  places,  is 
only  valid  in  respect  to  the  things  as  to  which  it  is  duly  recorded. 

7963.  Personal  mortgage  may  he  recorded. 

Sec  2963.  Except  as  it  is  otherwise  in  this  article  provided,  mortgages  of 
personal  property  may  be  acknowledged  or  proved  and  certified,  recorded  iu 
like  manner  and  with  hke  effect  as  grants  of  real  property;  but  they  must  be 
recorded  in  books  kept  for  personal  mortgages  exclusively. 

7964.  Certified  copies  may  he  recorded,  when. 

Sec  2964.  A  certified  copy  of  a  mortgage  of  personal  property  once  recorded 
may  be  recorded  in  any  other  county,  and  when  so  recorded  the  record  thereof 
has  the  same  force  and  effect  as  though  it  was  of  the  original  mortgage. 

853 


7965-7988  CIVIL  CODE. 

7965.  rroperty  exempt  from  effect  of  mortgage,  tclien. 

Sec.  2965.  When  personal  i:)roperty  mortgaged  is  thereafter  by  the  mortgagor 
removed  from  the  county  in  which  it  is  situated,  it  is,  except  as  between  the 
parties  to  the  mortgage,  exempted  from  the  operation  thereof,  unless  either: 

1.  The  mortgagee,  wdthin  thirty  days  after  such  removal,  causes  the  mortgage 
to  be  recorded  in  the  county  to  w^hich  the  property  has  been  removed;  or, 

2.  The  mortgagee,  within  thirty  days  after  such  removal,  takes  possession  of 
the  jjroperty,  as  prescribed  in  the  next  section. 

7966.  May  he  taken  hy  mortgagee  as  a  jyledge,  when. 

Sec  2966.  If  a  mortgagor  voluntarily  removes  or  permits  the  removal  of  the 
mortgaged  jiroperty  from  the  county  in  which  it  was  situated  at  the  time  it  was 
mortgaged,  the  mortgagee  may  take  possession  and  dispose  of  the  j)roperty  as 
a  pledge  for  the  payment  of  the  debt,  though  the  debt  is  not  due. 

7967.  Hoiv  foreclosed. 

Sec.  2967.  A  mortgagee  of  personal  property,  when  the  debt  to  secure  which 
the  mortgage  was  executed  becomes  due,  may  foreclose  the  mortgagor's  right 
of  redemption  by  a  sale  of  the  property,  made  in  the  manner  and  upon  the 
notice  prescribed  by  the  title  on  "  Pledge,"  or  by  proceedings  under  the  Code 
of  Civil  Procedure. 

7868.  Mortgage  proioeriy  may  he  levied  upon. 

Sec.  2968.  Personal  property  mortgaged  may  be  taken  under  attachment  or 
execution  issued  at  the  suit  of  a  creditor  of  the  mortgagor. 

7969.  Limitations  on  7'ight  of  levy. 

Sec.  2969.  Before  the  property  is  so  taken,  the  officer  must  pay  or  tender  to 
the  mortgagee  the  amount  of  the  mortgage  debt  and  interest,  or  must  deposit 
the  amount  thereof  with  the  county  clerk  or  treasurer,  payable  to  the  order  of 
the  mortgagee. 

7970.  Bisfrihution  of  proceeds  of  sale  under  process. 

Sec  2970.  When  the  property  thus  taken  is  sold  under  process,  the  officer 
must  apply  the  proceeds  of  the  sale  as  follows: 

1.  To  the  repayment  of  the  sum  paid  to  the  mortgagee,  with  interest  from 
the  date  of  such  payment;  and, 

2.  The  balance,  if  any,  in  like  manner  as  the  proceeds  of  sales  under  execu- 
tion are  applied  in  other  cases. 

7971.  Certain  sections  not  applicahle  to  mortgage  of  certain  ships. 

Sec  2971.  Sections  2957,  2959,  2960,  29*61,  2962,  2963,  2964,  2965,  and  2966 
A^  „^+  «r^-.^i,r  fo  anv  morterage  of  a  ship  or  part  of  a  shij)  under  the  flag  of  the 


7986.  riedge,  what. 

Sec  2986.  Pledge  is  a  deposit  of  personal  property  by  way  of  security  for 
the  performance  of  another  act. 

7987.  When  contract  is  to  he  deemed  a  pledge. 

Sec  2987.  Every  contract  by  which  the  possession  of  personal  property  is 
transferred,  as  security  ouly,  is  to  be  deemed  a  pledge. 

7988.  Delivery  essential  to  validity  of  pledge. 

Sec  2988.  The  lien  of  a  pledge  is  dependent  on  possession,  and  no  pledge  is 
valid  until  the  property  pledged  is  delivered  to  the  pledgee,  or  to  a  pledge 
holder,  as  hereafter  prescribed. 

854 


LIEN.  7989-8000 

7989.  Increase  of  thing. 

Sec.  2989.  The  increase  of  property  pledged  is  pledged  with  tlio  pvoporty. 

7990.  Lienor  may  pledge  properly  to  extent  of  liis  lien. 

Sec.  2990.  One  who  has  a  lien  upon  property  may  pledge  it  to  the  extent  of 
his  lien. 

7991.  Ileal  owner  cannot  defeat  pledge  of  property  tranff erred  to  apparent  ovncr 

for  purpose  of  p)ledge. 
Sec.  2991.  One  who  has  allowed  another  to  assume  the  apparent  ownership 
of  property  for  the  purpose  of  making  any  transfer  of  it,  cannot  set  up  his  own 
title,  to  defeat  a  pledge  of  the  property,  made  by  the  other,  to  a  pledgee  who 
received  the  property  in  good  faith,  in  the  ordinary  course  of  business,  and  for 
value. 

7992.  Pledge  lender,  what. 

Sec  2992.  Property  may  be  pledged  as  security  for  the  obligation  of  anotbcr 
person  than  the  owner,  and  in  so  doing  the  owner  has  all  the  rights  of  a  pledgor 
for  himself,  except  as  hereinafter  stated. 

7993.  Pledge  holder,  what. 

Sec.  2993.  A  pledgor  and  pledgee  may  agree  upon  a  third  person  with  wliom 
to  deposit  the  proi^erty  pledged,  who,  if  he  accepts  the  deposit,  is  called  a 
pledge  holder. 

7994.  When  2)ledge  lender  may  withdraw  property  pledged. 

Sec  2994.  One  who  pledges  property  as  security  for  the  obligation  of 
another,  cannot  withdraw  the  property  pledged  otherwise  than  as  a  pledgor  for 
himself  might,  and  if  he  receives  from  the  debtor  a  consideration  for  the  pledge 
he  cannot  withdraw  it  without  his  consent. 

7995.  Obligations  of  pledge  holder. 

Sec  2995.  A  pledge  holder  for  reward  cannot  exonerate  himself  from  his 
undertaking;  and  a  gratuitous  pledge  holder  can  do  so  only  by  giving  reasonable 
notice  to  the  pledgor  and  pledgee  to  aj^point  a  new  pledge  holder,  and  in  case 
of  their  failure  to  agree,  by  depositing  the  property  pledged  with  some  impar- 
tial person,  who  wall  then  be  entitled  to  a  reasonable  compensation  for  his  care 
of  the  same. 

7996.  Pledge  holder  must  enforce  rights  of  pledgee. 

Sec  2996.  A  pledge  holder  must  enforce  all  the  rights  of  the  pledgee,  unless 
authorized  by  him  to  waive  them. 

7997.  Obligation  of  pledgee  and  pledge  holder,  for  reward. 

Sec.  2997.  A  jDledgee,  or  a  pledge  holder  for  reward,  assumes  the  duties  and 
liabilities  of  a  depositary  for  reward. 

7998.  Gratuitous  pledge  holder. 

Sec  2998.  A  gratuitous  i^ledge  holder  assumes  the  duties  and  liabilities  of  a 
gratuitous  dej)ositary. 

7999.  Debtor's  misrepresentation  of  value  of  pledge. 

Sec  2999.  Where  a  debtor  has  obtained  credit,  or  an  extension  of  time,  by  a 
fraudulent  misrepresentation  of  the  value  of  property  pledged  by  or  for  him, 
the  creditor  may  demand  a  further  pledge  to  correspond  with  the  value  repre- 
sented; and  in  default  thereof  may  recover  his  debt  immediately,  though  it  be 
not  actually  due. 

8000.  When  pledgee  may  sell. 

Sec  3000.  When  performance  of  the  act  for  which  a  pledge  is  given  is  due, 
in  whole  or  in  part,  the  pledgee  may  collect  what  is  due  to  him  by  a  sale  of 
property  pledged,  subject  to  the  rules  and  exceptions  hereinafter  prescribed. 

855 


8001-8011  CIVIL  CODE. 

8001.  Demand  of  'performance  requisile  before  sale  of  pledge. 

Sec.  3001.  Before  property  jjledgecl  cau  be  sold,  and  after  performance  of  the 
act  for  which  it  is  security  is  due,  the  pledgee  must  demand  performance  thereof 
from  the  debtor,  if  the  debtor  can  be  found.  [Amendment,  aioproved  March  30, 
1874;  Amendments  1873-4,  2G2;  took  effect  July  1,  1874.^^' 

8002.  Notice  of  sale  to  pledgor. 

Sec.  3002.  A  pledgee  must  give  actual  notice  to  the  j^ledgor  of  the  time  and 
place  at  which  the  property  pledged  will  be  sold,  at  such  a  reasonable  time 
before  the  sale  as  will  enable  the  pledgor  to  attend. 

8003.  Waiver  of  notice  of  sale. 

Sec.  3003.  Notice  of  sale  may  be  waived  by  a  i:)ledgor  at  any  time;  but  is  not 
waived  by  a  mere  waiver  of  demand  of  performance. 

8004.  Waiver  of  demand. 

Sec  3004.  A  debtor  or  pledgor  waives  a  demand  of  joerformance  as  a 
condition  jDrecedent  to  a  sale  of  the  property  jDledged,  by  a  positive  refusal  to 
perform,  after  performance  is  due;  but  cannot  waive  it  in  any  other  manner, 
except  by  contract. 

8005.  Sale  must  be  by  auction. 

Sec  3005.  The  sale  by  a  pledgee,  of  joroperty  pledged,  must  be  made  by 
public  auction,  in  the  manner  and  upon  the  notice  to  the  public  usual  at  the 
place  of  sale,  in  respect  to  auction  sales  of  similar  property;  and  must  be  for 
the  highest  obtainable  price. 

8006.  Pledgee's  sale  of  securities. 

Sec  300G.  A  pledgee  cannot  sell  any  evidence  of  debt  pledged  to  him,  except 
the  obligations  of  governments,  states,  or  corporations;  but  he  may  collect  the 
same  when  due. 

8007.  Sale  on  the  demand  of  the  pledgor. 

Sec  3007.  "Whenever  property  i^ledged  can  be  sold  for  a  price  sufficient  to 
satisfy  the  claim  of  the  pledgee,  the  pledgor  may  require  it  to  be  sold,  and  its 
proceeds  to  be  applied  to  such  satisfaction  when  due. 

8008.  Surplus  to  be  paid  to  pledgor. 

Sec  3008.  After  a  pledgee  has  lawfully  sold  jn-operty  pledged,  or  otherwise 
collected  its  proceeds,  he  may  deduct  therefrom  the  amount  due  under  the 
principal  obligation,  and.  the  necessary  expenses  of  sale  and  collection,  and 
must  iDay  the  surplus  to  the  pledgor,  on  demand. 

8009.  nights  (f  pledgee  on  sale  of  pledge. 

Sec  3009.  "When  property  jjledged  is  sold  by  order  of  the  pledgor  befoi-e  the 
claim  of  the  pledgee  is  due,  the  latter  may  retain  out  of  the  proceeds  all  that 
can  possibly  become  due  under  his  claim  until  it  becomes  due.  [Amendment, 
approved  March  30,  1874;  Amendmoifs  1873-4,  262;  took  effect  July  1,  1874.^"' 

8010.  Pledgee's  purchase  of  property  pledged. 

Sec  3010.  A  pledgee,  or  pledge  holder,  cannot  purchase  the  property  pledged, 
except  by  direct  dealing  with  the  pledgor. 

8011.  Pledgee  may  foreclose  right  of  redemption. 

Sec  3011.  Instead  of  selling  property  pledged,  as  hereinbefore  provided,  a 
pledgee  may  foreclose  the  right  of  redemption  by  a  judicial  sale,  under  the 
direction  of  a  competent  court;  and  in  that  case  may  be  authorized  by  the  court 
to  purchase  at  the  sale. 

(a)  The  original  seition  did  not  have  the  words  "  If  claim  of  the  pledgee  is  due,  he  may  retain  out  of  the 
the  debtor  can  be  found."  proceeds  h11  that  can  possibly  become  due  under  his 

(b)  Origiual  section:  daiui,  until  it  becomes  due,  with  the  proper  rebate  of 
Sac.  3009.  When  i^roperty  pledged  is  sold  before  the     interest. 

85G 


LIEN.  8017-8028 

CHAPTEK  IV. 

BOTTOMRY. 

8017.  Bottomry,  what. 

Sec.  3017.  Bottomry  is  a  contract  by  wliicli  a  shii)  or  its  f  rei<,flitage  is  liypothe- 
cated  as  security  for  a  loan,  wliicli  is  to  be  repaid  only  in  case  the  ship  survives 
a  particular  risk,  voyage,  or  period. 

8018.  Owner  of  ship  may  hypothecate. 

Sec.  3018.  The  owner  of  a  shij)  may  hypothecate  it  or  its  freightage,  upon 
bottomry,  for  any  lawful  purpose,  and  at  any  time  and  place. 

8019.  When  master  may  hypothecate  si  tip. 

Sec.  3019.  The  master  of  a  ship  may  hypothecate  it  upon  bottomry  only  for 
the  purpose  of  procuring  repairs  or  supplies  which  are  necessary  for  accomplish- 
ing the  objects  of  the  voyage,  or  for  securing  the  safety  of  the  ship. 

8020.  Same. 

Sec.  3020.  The  master  of  a  ship  can  hypothecate  it  upon  bottomiy  only  when 
he  cannot  otherwise  relieve  the  necessities  of  the  ship,  and  is  unable  to  reach 
adequate  funds  of  the  owner,  or  to  obtain  any  upon  the  personal  credit  of  the 
owner,  and  when  previous  communication  with  him  is  precluded  by  the  urgent 
necessity  of  the  case. 

8021.  When  master  may  hypothecate  freight  money. 

Sec.  3021.  The  master  of  a  ship  may  hypothecate  freightage  upon  bottomiy, 
under  the  same  circumstances  as  those  which  authorize  an  hypothecation  of  the 
ship  by  him, 

8022.  Bate  of  interest.  • 

Sec.  3022.  Ui^on  a  contract  of  bottomiy,  the  parties  may  lawfully  stipulate 
for  a  rate  of  interest  higher  than  that  allowed  by  the  law  upon  other  contracts. 
But  a  competent  court  may  reduce  the  rate  stipulated  when  it  appears  unjusti- 
fiable and  exorbitant. 

8023.  Bights  of  lender,  when  no  necessity  for  bottomry  existed. 

Sec.  3023.  A  lender  upon  a  contract  of  bottomry,  made  by  the  master  of  a 

ship,  as  such,  may  enforce  the  contract,  though  the  circumstances  necessary  to 

authorize  the  master  to  hypothecate  the  shijD  did  not  in  fact  exist,  if,  after  due 

iiligence  and  inquiry,  the  lender  had  reasonable  grounds  to  believe,  and  did  in 

ood  faith  believe,  in  the  existence  of  such  circumstances. 

')24.  Stipulation  for  personal  liability  void. 

Sec.  3024.  A  stipulation  in  a  contract  of  bottomry,  imposing  any  liability  for 
loan  indej)endent  of  the  maritime  risks,  is  void. 
'5.    When  money  loaned  is  to  be  repaid. 

c.  3025.  In  case  of  a  total  loss  of  the  thing  hypothecated,  from  a  risk  to 
A  the  loan  was  subject,  the  lender  upon  bottomry  can  recover  nothing;  in 
^H  a  partial  loss,  he  can  recover  only  to  the  extent  of  the  net  value  to  the 
*^^of  the  part  saved. 
°    When  bottomry  loan  becomes  due. 

^'026.  Unless  it  is  otherwise  expressly  agreed,  a  bottomry  loan  becomes 
^^^  ediately  upon  the  termination  of  the  risk,  although  a  term  of  credit  is 

''P^^in  the  contract. 
orvo"" 

Homry  lien,  how  lost. 

^^*-7.  A  bottomry  lien  is  independent  of  possession,  and  is  lost  by  omis- 
sion ^\y.QQ  ji;  within  a  reasonable  time, 
8028.  •^^.g^jgg  ^y  bottomry  lien  over  other  liens. 

^^*^"    A  bottomry  lieu,  if  created  out  of  a  real  or  apparent  necessity,  in 

857 


8028-8049  CIVIL  CODE. 

good  faith,  is  j^ref erred  to  ereiy  other  lien  or  claim  upon  the  same  thing, 
excepting  only  a  lien  for  seamen's  wages,  a  subsequent  lien  of  material-men  for 
supiDlies  or  repairs  indispensable  to  the  safety  of  the  ship,  and  a  subsequent 
lien  for  salvage. 

8029.  Priority  of  bottomry  liens. 

Sec.  3029.  Of  two  or  more  bottomry  liens  on  the  same  subject,  the  latter  in 
date  has  preference,  if  created  out  of  necessity: 

CHAPTEE  Y. 

BESPONDENTIA. 

8036.  Respondentia,  what. 

Sec.  3036.  Respondentia  is  a  contract  by  which  a  cargo,  or  some  part  thereof, 
is  hyiDothecated  as  security  for  a  loan,  the  repayment  of  which  is  dependent  on 
maritime  risks. 

8037.  Respondentia  by  owner. 

Sec  3037.  The  owner  of  cargo  may  hyiDothecate  it  upon  respondentia,  at  any 
time  and  place,  and  for  any  lawful  purpose. 

8038.  Respondentia  by  master. 

Sec.  3038.  The  master  of  a  shijD  may  hypothecate  its  cargo  upon  respondentia 
only  in  a  case  in  which  he  would  be  aiithorized  to  hypothecate  the  ship  and 
freightage,  but  is  unable  to  borrow  sufficient  mone}'  thereon  for  repairs  or  sup- 
plies which  are  necessary  for  the  successful  accomplishment  of  the  voyage;  and 
he  cannot  do  so,  even  in  such  case,  if  there  is  no  reasonable  prospect  of  bene- 
fiting the  cargo  thereby. 

8039.  Rate  of  interest. 

Sec  3039.  The  provisions  of  sections  3022  to  3029  apply  equally  to  loans  on 
resj^ondentia. 

8040.  Obligations  of  shipowner. 

Sec  3040.  The  owner  of  a  ship  is  bound  to  repay  to  the  owner  of  its  cargo 
all  which  the  latter  is  compelled  to  pay,  under  a  contract  of  respondentia  made 
by  the  master,  in  order  to  discharge  its  lien. 

CHAPTEE  VI. 

OTHER  LIENS. 

8046.  Lien  of  seller  of  real  property . 

Sec.  3046.  One  who  sells  real  proi:)erty  has  a  vendor's  lien  thereon,  indej)en(" 
ent  of  possession,  for  so  much  of  the  jjrice  as  remains  unpaid  and  unsecur/ 
otherwise  than  by  the  personal  obligation  of  the  buyer.  / 

8047.  When  transfer  of  contract  waives  lien.  / 
Sec  3047.  Where  a  buyer  of  real  property  gives  to  the  seller  a  written 

tract  for  payment  of  all  or  part  of  the  price,  an  absolute  transfer  of  such/ 
tract  by  the  seller  waives  his  lien  to  the  extent  of  the  sum  payable  uud^ 
contract,  but  a  transfer  of  such  contract  in  trust  to  pay  debts,  and  retu^ 
surplus,  is  not  a  waiver  of  the  lieu. 

8048.  Extent  of  seller's  lien. 
Sec  3048.  The  liens  defined  in  sections  3046  and  3050  are  valid  again/^'y 

one  claiming  under  the  debtor,  except  a  purchaser  or  incumbrancer  /^°^ 
faith  and  for  value. 

8049.  Lien  of  seller  of  ftorsonal  properly . 
Sec  3049.  One  who  sells  personal  jiroperty  has  a  special  lien  thereoy^^ 

858 


LIEN.  8049-8058 

ent  on  possession,  for  its  price,  if  it  is  in  his  possession  when  tlie  price  hoconies 
payable,  and  may  enforce  his  lien  in  like  manner  as  if  the  property  was  pledged 
to  him  for  the  price. 

8050.  Purchaser's  lien  on  real  property. 

Sec.  3050.  One  who  pays  to  the  owner  any  part  of  the  price  of  real  property, 
under  an  agreement  for  the  sale  thereof,  has  a  special  lien  upon  the  property, 
independent  of  possession,  for  such  part  of  the  amount  paid  as  he  may  be 
entitled  to  recover  back,  in  case  of  a  failure  of  consideration. 

8051.  Lien  for  services. 

"                         ''  -    —1-1"  i"".fniKr  ^r,  possession  of  an  article  of 

§3051.     Add,  "and  livery,  or  boarding,  or  feed-stable  pro-  lereof   by  labor  or   skill 

pne  ors  and  persons  pasturing  horses  or  sf.ck  have  liens  de-  n-    or   caiTia^re  thereof 

pendent   on    possession    (or  their  compensation  in  caring  for  ^'          Coinage  tlltieol 

boarding  or  pasturing  such  horses  or  stock."     [In  effect  May  O^'  ^^^^    compensation,  if 
^o    1 878. 1 


ce. 


8052.  Liens  on  personal  property.  , 

Sec.  3052.  A  person  who  makes,  alters,  or  repairs  any  article  of  personal 
proj)erty,  at  the  request  of  the  owner  or  legal  joossessor  of  the  property,  has  a 
lien  on  the  same  for  his  reasonable  charges  for  work  done  and  materials  fur- 
nished, and  may  retain  j)ossession  of  the  same  until  the  charges  are  paid.  If 
not  i^aid  within  two  months  after  the  work  is  done,  the  person  may  proceed  to 
sell  the  property  at  public  auction,  by  gi\'ing  ten  days'  public  notice  of  the 
sale  by  advertising  in  some  news^mper  published  in  the  county  in  which  the 
work  was  done;  or,  if  there  be  no  newspaper  published  in  the  county,  then  by 
jDOsting  up  notices  of  the  sale  in  three  of  the  most  public  places  in  the  town 
where  the  work  was  done,  for  ten  days  j^revious  to  the  sale.  The  proceeds  of 
the  sale  must  be  applied  to  the  discharge  of  the  lien  and  the  cost  of  keeping 
and  selling  the  property;  the  remainder,  if  any,  must  be  paid  over  to  the  owner 
thereof. 

8053.  Lien  of  factor. 

Sec.  3053.  A  factor  has  a  general  lien,  dependent  on  possession,  for  all  that 
is  due  to  him  as  such,  upon  all  articles  of  commercial  value  that  are  intrusted 
to  him  by  the  same  principal. 

8054.  Banker's  Hen. 

Sec  3054.  A  banker  has  a  general  lien,  dependent  on  possession,  upon  all 
property  in  his  hands  belonging  to  a  customer,  for  the  balance  due  to  him  from 
such  customer  in  the  course  of  the  business. 

8055.  Shipmaster's  lien. 

Sec  3055.  The  master  of  a  ship  has  a  general  lien,  independent  of  posses- 
sion, upon  the  ship  and  freightage,  for  advances  necessarily  made  or  liabilities 
necessarily  incurred  by  him  for  the  benefit  of  the  ship,  but  has  no  lien  for  his 
wages. 

8056.  Seamen's  lien. 

Sec  3056.  The  mate  and  seamen  of  a  ship  have  a  general  lien,  independent 
of  possession,  upon  the  ship  and  freightage,  for  their  wages,  which  is  superior 
to  every  other  lien. 

8057.  Officer's  lien. 

Sec  3057.  An  officer  who  levies  an  attachment  or  execution  upon  personal 
property  acquires  a  special  lien,  dependent  on  possession,  upon  such  property, 
which  authorizes  him  to  hold  it  until  the  process  is  discharged  or  satisfied,  or  a 
judicial  sale  of  the  property  is  had. 

8058.  Judgment  lien. 

Sec  3058.  The  lien  of  a  judgment  is  regulated  by  the  Code  of  Civil  Pro- 
cedure. 

859 


8059-8080  CIVIL  CODE. 

8059.  Mechanic's  lien. 

Sec.  3059.  The  liens  of  mecbanics,  for  materials  and  services  upon  real  prop- 
erty, are  regulated  by  the  Code  of  Civil  Procedure. 

8060.  Lien  on  ships. 

Sec.  3060.  Debts  amounting  to  at  least  fifty  dollars,  contracted  for  the 
benefit  of  ships,  are  liens  in  the  cases  provided  by  the  Code  of  Ci\dl  Procedure. 

CHAPTEE  VII. 

STOPPAGE   IN   TRANSIT. 

8076.  When  consignor  may  stop  goods. 

Sec.  3076.  A  seller  or  consignor  of  property,  whose  claim  for  its  price  or  pro- 
ceeds has  not  been  extinguished,  may,  ujDon  the  insolvency  of  the  buyer  or 
consignee  becoming  known  to  him  after  parting  with  the  property,  stop  it  Avhile 
on  its  transit  to  the  buyer  or  consignee,  and  resume  possession  thereof. 

8077.  What  is  insolvency  of  consignee. 

Sec.  3077.  A  person  is  insolvent,  within  the  meaning  of  the  last  section,  when 
he  ceases  to  pay  his  debts  in  the  manner  usual  with  persons  of  his  business,  or 
when  he  declares  his  inability  or  unwillingness  to  do  so. 

8078.  Transit,  ivhen  ended. 

Sec.  3078.  The  transit  of  property  is  at  an  end  when  it  comes  into  the  pos- 
session of  the  consignee,  or  into  that  of  his  agent,  unless  such  agent  is  employed 
merely  to  forward  the  property  to  the  consignee. 

8079.  Stoppage,  how  effected. 

Sec.  3079.  Stoppage  in  transit  can  be  effected  only  by  notice  to  the  carrier  or 
depositary  of  the  property,  or  by  taking  actual  possession  thereof. 

8080.  Effect  of  stoppage. 

Sec.  3080.  Stopj^age  in  transit  does  not,  of  itself,  rescind  a  sale,  but  is  a 
means  of  enforcing  the  lien  of  the  seller. 


TITLE  XV. 

Ilcoottabic  |i!^trumcnt0. 

Chapter  I.  Negotiable  Instruments  in  General 8086 

II.  Bills  of  Exchange  8171 

III.  Proiiissory  Notes 8244 

IV.  Checks 8254 

V.  Bank  Notes  and  Certificates  of  Deposit 8261 

CHAPTER  I. 

NEGOTIABLE  INSTRUMENTS   IN   GENERAL. 

Article    I.  Genk.eal  Definitions 8086 

II.  Inteepeetation 8099 

III .  Indoesement 8108 

IV.  Peesentment  foe  Payment   8130 

V.  DisHONOii 8141 

VI.  Excuse  of  Peesentment  and  Notice 8155 

VII.  Extinction 8164 

860 


NEGOTIABLE  INSTRUMENTS.  8086-8100 

ARTICLE  I. 

GENERAL    DEFINITIONS. 

8086.  To  what  instruments  this  title  is  applicable. 

Sec.  3086.  The  provisions  of  this  title  apply  only  to  negotiable  instruments, 
as  defined  in  this  article, 

8087.  Negotiable  instrument,  ivhat. 

Sec.  3087.  A  negotiable  instrument  is  a  written  promise  or  request  for  the 
payment  of  a  certain  sum  of  money  to  order  or  bearer,  in  conformity  to  the 
provisions  of  this  article. 

8088.  3Iust  be  for  unconditional  payment  of  money. 

Sec.  8088.  A  negotiable  instrument  must  be  made  j^ayable  in  money  only, 
and  without  any  condition  not  certain  of  fulfillment. 

8089.  Paijee. 

Sec.  3089.  The  person  to  whose  order  a  negotiable  instrument  is  made  pay- 
able must  be  ascertainable  at  the  time  the  instrument  is  made. 

8090.  Instrument  may  be  in  altei^native. 

Sec  3090.  A  negotiable  instrument  may  give  to  the  payee  an  option  between 
the  payment  of  the  sum  specified  therein  and  the  performance  of  another  act; 
but  as  to  the  latter,  the  instrument  is  not  within  the  provisions  of  this  title. 

8091.  Date,  etc. 

Sec  3091.  A  negotiable  instrument  may  be  with  or  without  date,  and  with 
or  without  designation  of  the  time  or  place  of  payment. 

8092.  May  contain  a  pledge,  etc. 

Sec  3092.  A  negotiable  instrument  may  contain  a  pledge  of  collateral  secu- 
rity, with  authority  to  dispose  thereof. 

8093.  What  it  must  not  contain. 

Sec  3093.  A  negotiable  instrument  must  not  contain  any  other  contract  than 
such  as  is  specified  in  this  article. 

8094.  Date. 

Sec  3094.  Any  date  may  be  inserted  by  the  maker  of  a  negotiable  instru- 
ment, whether  past,  present,  or  future,  and  the  instrument  is  not  invahdated 
by  his  death  or  incapacity  at  the  time  of  the  nominal  date. 

8095.  Different  classes  of  negotiable  instruments. 

Sec.  3095.  There  are  six  classes  of  negotiable  instruments,  namely: 

1.  Bills  of  exchange; 

2.  Promissory  notes; 

3.  Bank  notes; 

4.  Checks; 

5.  Bonds; 

6.  Certificates  of  deposit. 

ARTICLE  II, 
interpretation  of  negotiable  instruments. 

8099.  Time  and  place  of  parjment. 

Sec  3099.  A  negotiable  instrument  which  does  not  specify  the  time  of  pay- 
ment, is  payable  immediately. 

8100.  Place  of  payment  not  specified. 

Sec  3100.  A  negotiable  instrument  which  does  not  specify  a  place  of  pay- 
ment, is  payable  at  the  residence  or  place  of  business  of  the  maker,  or  wherever 

861 


8100-8115  CIVIL  CODE. 

he  may  be  found.     [Amenchnent,  approved  March  30,  1874;  Amendments  1873-4, 
262;  took  effect  July  1,  1874.^"^ 

8101.  Instruments  payable  to  a  person  or  his  order,  how  construed. 

Sec.  3101.  An  instrument,  otherwise  negotiable  in  form,  payable  to  a  person 
named,  but  with  the  words  added,  "or  to  his  order,"  or  "to  bearer,"  or  words 
equivalent  thereto,  is  in  the  former  case  payable  to  the  written  order  of  such 
person,  and  in  the  latter  case  payable  to  the  bearer. 

8102.  Unindorsed  note,  when  negotiable. 

Sec.  3102.  A  negotiable  instrument,  made  payable  to  tbe  order  of  the  maker, 
or  of  a  fictitious  person,  if  issued  by  the  maker  for  a  valid  consideration,  without 
indorsement,  has  the  same  effect  against  him  and  all  other  persons  having 
notice  of  the  facts  as  if  payable  to  the  bearer. 

8103.  Fictitious  j)ciyee. 

Sec.  3103.  A  negotiable  instrument,  made  payable  to  the  order  of  a  person 
obviously  fictitious,  is  payable  to  the  bearer. 

8104.  Fresumplion  of  consideration. 

Sec.  3104.  The  signature  of  every  drawer,  acceptor,  and  indorser  of  a  nego- 
tiable instrument  is  presumed  to  have  been  made  for  a  valuable  consideration, 
before  the  maturity  of  the  instrument,  and  in  the  ordinary  course  of  business. 

AKTICLE   III. 

INDORSEMENT. 

8108.  Indorsement,  what. 

Sec  3108.  One  who  writes  his  name  upon  a  negotiable  instrument,  otherwise 
than  as  a  maker  or  acceptor,  and  delivers  it,  with  his  name  thereon,  to  another 
person,  is  called  an  indorser,  and  his  act  is  called  indorsement. 

8109.  Agreement  to  indorse. 

Sec.  3109.  One  who  agrees  to  indorse  a  negotiable  instrument  is  bound  to 
write  his  signature  upon  the  back  of  the  instrument,  if  there  is  sufiicient  space 
thereon  for  that  purpose. 

8110.  When  may  be  made  07i  separate  paper. 

Sec.  3110.  When  there  is  not  room  for  a  signature  upon  the  back  of  a  nego- 
tiable instrument,  a  signature  equivalent  to  an  indorsement  thereof  may  be 
made  upon  a  paper  annexed  thereto. 

8111.  Kinds  of  indorsement. 

Sec.  3111.  An  indorsement  may  be  general  or  special. 

8112.  General  indorsement,  what. 

Sec.  3112.  A  general  indorsement  is  one  by  which  no  indorsee  is  named. 

8113.  Special  indorsement,  what. 

Sec.  3113.  A  special  indorsement  specifies  the  indorsee. 

8114.  General  indorsement,  how  made  special. 

Sec.  3114.  A  negotiable  instrument  bearing  a  general  indorsement  cannot  be 
afterwards  specially  indorsed;  but  any  lawful  holder  may  turn  a  general  in- 
dorsement into  a  special  one,  by  writing  above  it  a  direction  for  payment  to  a 
particular  person. 

8115.  Destruction  of  yxegotiaJyility  by  indorser. 

Sec  3115.  A  special  indorsement  may,  by  express  words  for  that  purpose, 
but  not  otherwise,  be  so  made  as  to  render  the  instrument  not  negotiable. 

(a)  Orifiinal  section :  specify  a  place  of  payment  is  payable  wherever  it  Is 

Sec.  3100.  A  negotiable  instrument  wbich  docs  not     held  at  its  maturity. 

8(i2 


NEGOTIABLE  INSTKUIMENTS.  8116-8125 

8116.  Imjjlied  tmrranty  of  indorser. 

Sec.  3116.  Every  indorser  of  a  negotiable  inBtrument,  unless  liis  indorsement 
is  qualified,  warrants  to  eveiy  subsequent  holder  thereof,  who  is  not  liable 
thereon  to  him: 

1.  That  it  is  in  all  respects  what  it  purports  to  be; 

2.  That  he  has  a  good  title  to  it; 

3.  That  the  signatures  of  all  prior  parties  are  binding  upon  them; 

4.  That  if  the  instrument  is  dishonored,  the  indorser  will,  u])on  notice 
thereof,  duly  given  to  him,  or  without  notice,  where  it  is  excused  by  law,  pay 
the  same  with  interest,  unless  exonerated  under  the  provisions  of  sections  thirty- 
one  hundred  and  eighty-nine,  thirty-two  hundred  and  thirteen,  thirty-two 
hundred  and  forty-eight,  or  thirty-two  hundred  and  fifty-five.  [Ainendment, 
approved  March  30,  1874;  Amendmerds  1873-4,  263;  took  ejf'ecl  July  1,  1874.<'" 

8117.  Indorser,  when  liable  to  payee. 

Sec.  3117.  One  who  indorses  a  negotiable  instrument  before  it  is  delivered 
to  the  payee,  is  liable  to  the  payee  thereon,  as  an  indorser. 

8118.  Indorsement  ivithoid  recourse. 

Sec.  3118.  An  indorser  may  qualify  his  indorsement  with  the  words,  "  with- 
out recourse,"  or  equivalent  words;  and  ujion  such  indorsement,  he  is  respon- 
sible only  to  the  same  extent  as  in  the  case  of  a  transfer  without  indorsement, 

8119.  Sa7ne. 

Sec.  3119.  ExcejDt  as  otherwise  prescribed  by  the  last  section,  an  indorsement, 
without  recourse,  has  the  same  effect  as  any  other  indorsement. 

8120.  Indorsee  pi'ivy  to  contract. 

Sec.  3120.  An  indorsee  of  a  negotiable  instrument  has  the  same  rights  against 
every  prior  party  thereto  that  he  would  have  had  if  the  contract  had  been  made 
directly  between  them  in  the  first  instance. 

8121.  [Sec.  3121*'"  was  repealed  bv  act  approved  March  30,  1874;  Amendments 
1873-4,  263;  took  effect  July  1,  1874.] 

8122.  Effect  of  icant  of  consideration. 

Sec.  3122.  The  want  of  consideration  for  the  undertaking  of  a  maker,  accej^tor 
or  indorser  of  a  negotiable  instrument  does  not  exonerate  him  from  liability 
thereon  to  an  indorser  in  good  faith  for  a  consideration. 

8123.  Indorsee  in  due  course,  what. 

Sec.  3123.  An  indorsee  in  due  course  is  one  who,  in  good  faith,  in  the  ordi- 
nary course  of  business,  and  for  value,  before  its  apparent  maturity  or  presump- 
tive dishonor,  and  without  knowledge  of  its  actual  dishonor,  acquires  a  nego- 
tiable instrument  duly  indoi'sed  to  him,  or  indorsed  generally,  or  payable  to 
the  bearer. 

8124.  Rights  of  indorsee  in  due  course. 

Sfc.  3124.  An  indorsee  of  a  negotiable  instrument,  in  due  course,  acquires  an 
absolute  title  thereto,  so  that  it  is  valid  in  his  hands,  notwithstanding  any  pro- 
vision of  law  making  it  generally  void  or  voidable,  and  notwithstanding  any 
defect  in  the  title  of  the  person  from  whom  he  acquired  it. 

8125.  Instrument  left  blank. 

Sec.  3125.  One  who  makes  himself  a  party  to  an  instrument  intended  to  be 

(a)  The  original  section  did  not  have  the  words  "  un-  at  the  request  and  for  the  accommodation  of  another 

less  his  indorsement  is  qualified."    In  the  fourth  sub-  party  to  the  in^t^umeut,  has  all  the  rights  of  a  surety, 

division  instead  of  "pay  the  same,"  it  had  the  words  as  defined  by  the  chapter  on  suretyship,  and  is  ex<in- 

"  pay  so  much  of  the  same  as  the  holder  paid  therefor."  erated  in  like  manner  In  respect  to  every  one  having 

The    fourth    subdivision    did    not    have    the    words  notice  of  the  facts,  excei)t  that  he  is  not  entitled  to  cou- 

"  thirty-two  hundred  and  thirteen."  tributiou  from  subsequent  indorsers. 

(6)  Kepealed  section: 

Sec.  3121.  One  who  indorses  a  negotiable  Instrument, 

863 


8125-8133  CIVIL  CODE. 

negotiable,  but  which  is  left  wholly  or  partly  in  blank,  for  the  purpose  of  fill- 
ing afterwards,  is  liable  uj)on  the  instrument  to  an  indorsee  thereof  in  due 
course,  in  whatever  manner  and  at  whatever  time  it  may  be  filled,  so  long  as  it 
remains  negotiable  in  form. 

AETICLE  IV. 

PRESENTMENT    FOR   PAYMENT. 

8130.  Effect  of  want  of  demand  on  pinncipal  debtor. 

Sec.  3130.  It  is  not  necessary  to  make  a  demand  of  payment  upon  the  prin- 
cipal debtor  in  a  negotiable  instrument  in  order  to  charge  him;  but  if  the  instru- 
ment is  by  its  terms  payable  at  a  specified  place,  and  he  is  able  and  willing  to 
pay  it  there  at  maturity,  such  ability  and  willingness  are  equivalent  to  an  offer 
of  pa^'ment  ujjon  his  part. 

8131.  Presentment,  lioio  made. 

Sec.  3131.  Presentment  of  a  negotiable  instrument  for  payment,  when  nec- 
essary, must  be  made  as  follows,  as  nearly  as  by  reasonable  diligence  it  isjDrac- 
ticable : 

1.  The  instrument  must  be  presented  by  the  holder; 

2.  The  instrument  must  be  presented  to  the  principal  debtor,  if  he  can  be 
found  at  the  place  where  presentment  should  be  made;  and  if  not,  then  it  must 
be  presented  to  some  other  person  having  charge  thereof,  or  employed  therein, 
if  one  can  be  found  there; 

3.  An  insti-ument  which  specifies  a  place  for  its  payment,  must  be  presented 
there;  and  if  the  jjlace  specified  includes  more  than  one  house,  then  at  the 
place  of  residence  or  business  of  the  principal  debtor,  if  it  can  be  found 
therein ; 

4.  An  instrument  which  does  not  specify  a  place  for  its  payment,  must  be 
presented  at  the  place  of  residence  or  business  of  the  principal  debtor,  or 
wherever  he  may  be  found,  at  the  oj^tion  of  the  presentor;  and, 

5.  The  instrument  must  be  presented  upon  the  day  of  its  maturity,  or,  if 
it  be  payable  on  demand,  it  may  be  presented  upon  any  day.  It  must  be  pre- 
sented within  reasonable  hours;  and,  if  it  be  payable  at  a  banking  house,  within 
the  usual  banking  hours  of  the  vicinity,  but,  by  the  consent  of  the  person  to 
whom  it  should  be  presented,  it  may  be  presented  at  any  hour  of  the  day; 

6.  If  the  principal  debtor  have  no  place  of  business,  or  if  his  jDlace  of 
business  or  residence  cannot,  with  reasonable  diligence,  be  ascertained,  i^re- 
sentment  for  payment  is  excused.  \Amendment,  approved  llarch  30,  1874; 
Amendments  1873^-4,  263;  took  effect  July  1,  1874.^=" 

8132.  Apparent  maturity,  when. 

Sec  3132.  The  apparent  maturity  of  a  negotiable  instrument,  payable  at  a 
particular  time,  is  the  day  on  which,  by  its  terms,  it  becomes  due,  or  when  that 
is  a  holiday,  the  next  business  day. 

8133.  Presum2)five  dishonor  of  bill,  payable  after  sight. 

Sec.  3133.  A  bill  of  exchange,  payable  at  a  certain  time  after  sight,  which  is 
not  accepted  within  ten  da^'s  after  its  date,  in  addition  to  the  time  which  would 
sufiice  with  ordinaiy  diligence,  to  forward  it  for  acceptance,  is  presumed  to 
have  been  dishonored. 

(a)  The  original  section  did  not  have  the  pixth  8ub-  "  ."j.  The  instrument  must  be  presented  upon  the  day 

division,   and   differed    from   the   aiueudiuenl  in   the  of  its  apiJHientmatvirity,  or,  if  it  is  payable  oudtmand, 

second  and  fifth  subdivisions,  which  were  as  follows:  at  any  tiiue  before  its  ajjpareut  maturity,  within  reasou- 

"2.  The  instrument  must  bo  presented  to  the  priuci-  able  liours;  and,  if  it  is  payable  at  a  bauliing-house, 

pal  debtor,  if  he  can  be  found  at  the  jjlace  where  pre-  within  the  usual  banking  hours <if  the  viiinily;  l)ut,  by 

gentment  should  be  made;  and  if  not,  then  it  must  be  the  consent  of  the  person  to  whom  it  should  be  pre- 

preeented  to  some  other  person  of  discretion,  if  one  can  Btnted,  it  may  be  jjresented  at  any  hour  of  the  day. 
be  found  there;  and  if  not,  then  it  must  be  presented 
to  a  notarj-  public  within  the  state; 

864 


NEGOTIABLE  INSTKmiENTS.  8134-8144 

8134.  Apparent  maturity  of  bill,  payable  at  sight. 

Sec.  3134.  The  apparent  maturity  of  a  bill  of  exchange,  payable  at  sight  or 
on  demand,  is: 

1.  If  it  bears  interest,  one  year  after  its  date;  or, 

2.  If  it  does  not  bear  interest,  ten  days  after  its  date,  in  addition  to  the  time 
which  would  suffice,  with  ordinary  diligence,  to  forward  it  for  accerjtance. 

8135.  Apparent  maturity  of  note. 

Sec.  3135.  The  apparent  maturity  of  a  promissory  note,  payable  at  sight  or 
on  demand,  is: 

1.  If  it  bears  interest,  one  year  after  its  date;  or, 

2.  If  it  does  not  bear  interest,  six  months  after  its  date. 

8136.  Same. 

Sec.  3136.  Where  a  promissory  note  is  payable  at  a  certain  time  after  sight 
or  demand,  such  time  is  to  be  added  to  the  periods  mentioned  in  the  last  sec- 
tion. 

8137.  Surrender  of  instrument,  ichen  condition  of  payment. 

Sec.  3137.  A  party  to  a  negotiable  instrument  may  require,  as  a  condition 
concurrent  to  its  payment  by  him : 

1.  That  the  instrument  be  surrendered  to  him,  unless  it  is  lost  or  destroyed, 
or  the  holder  has  other  claims  upon  it;  or, 

2.  If  the  holder  has  a  right  to  retain  the  instrument  and  does  retain  it,  then 
that  a  receipt  for  the  amount  paid,  or  an  exoneration  of  the  party  paying,  be 
written  thereon;  or, 

3.  If  the  instrument  is  lost  or  destroyed,  then  that  the  holder  give  to  him  a 
bond,  executed  by  himself  and  two  sufficient  sureties,  to  indemnify  him  against 
any  lawfid  claim  thereon. 

ARTICLE  V. 

DISHONOR   OF    NEGOTIABLE    INSTRUMENTS. 

8141.  Dishonor,  lohat. 

Sec.  3141.  A  negotiable  instrument  is  dishonored  when  it  is  either  not  paid, 
or  not  accepted,  according  to  its  tenor,  on  presentment  for  that  purpose,  or 
without  presentment,  where  that  is  excused. 

8142.  Notice,  by  whom  given. 

Sec.  3142,  Notice  of  the  dishonor  of  a  negotiable  instrument  may  be  given : 

1.  By  a  holder  thereof;  or, 

2.  By  any  party  to  the  instrument  who  might  be  compelled  to  pay  it  to  the 
holder,  and  who  would,  upon  taking  it  up,  have  a  right  to  reimbursement 
from  the  party  to  whom  the  notice  is  given. 

8143.  Form  of  notice. 

Sec.  3143.  A  notice  of  dishonor  may  be  given  in  any  form  which  describes 
the  instrument  with  reasonable  certainty,  and  substantially  informs  the  party 
receiving  it  that  the  instrument  has  been  dishonored. 

8144.  Notice,  how  served. 

Sec.  3144.  A  notice  of  dishonor  may  be  given: 

1.  By  delivering  it  to  the  party  to  be  charged,  personally,  at  any  place;  or, 

2.  By  delivering  it  to  some  person  of  discretion  at  the  place  of  residence  or 
business  of  such  party,  apparently  acting  for  him;  or, 

3.  By  properly  folding  the  notice,  directing  it  to  the  party  to  be  charged,  at 
his  place  of  residence,  according  to  the  best  information  that  the  person  giving 
the  notice  can  obtain,  depositing  it  in  the  post-office  most  conveniently  accessi- 
ble from  the  place  where  the  presentment  was  made,  and  paying  the  postage 
thereon. 

54  865 


8145-8156  CIVIL  CODE. 

8145.  2\otice,  hoiv  served  after  indorser's  death. 

Sec.  3145.  In  case  of  the  death  of  a  party  to  whom  notice  of  dishonor  should 
otherwise  be  given,  the  notice  must  he  given  to  one  of  his  personal  representa- 
tives; or,  if  there  are  none,  then  to  any  member  of  his  family  who  resided  with 
him  at  his  death;  or,  if  there  is  none,  then  it  must  be  mailed  to  his  last  place 
of  residence,  as  prescribed  by  subdivision  3  of  the  last  section. 

8146.  Notice  given  in  ignorance  of  death,  valid. 

Sec.  3146.  A  notice  of  dishonor  sent  to  a  jDarty  after  his  death,  but  in  igno- 
rance thereof,  and  in  good  faith,  is  valid. 

8147.  Notice,  when  to  be  given. 

Sec  3147.  Notice  of  dishonor,  when  given  by  the  holder  of  an  instrument  or 
his  agent,  otherwise  than  by  mail,  must  be  given  on  the  day  of  dishonor,  or  on 
the  next  business  day  thereafter. 

8148.  Notice  of  dishonor',  when  to  be  mailed. 

Sec.  3148.  When  notice  of  dishonor  is  given  by  mail,  it  must  be  deposited 
in  the  post-office  in  time  for  the  first  mail  which  closes  after  noon  of  the  first 
business  day  succeeding  the  dishonor,  and  which  leaves  the  place  where  the 
instrument  was  dishonored,  for  the  place  to  which  the  notice  should  be  sent. 

8149.  Notice,  hoio  given  by  agent. 

Sec.  3149.  When  the  holder  of  a  negotiable  instrument  at  the  time  of  its  dis- 
honor, is  a  mere  agent  for  the  owner,  it  is  sufficient  for  him  to  give  notice  to 
his  principal  in  the  same  manner  as  to  an  indorser,  and  his  principal  may  give 
notice  to  any  other  party  to  be  charged,  as  if  he  were  himself  an  indorser. 
And  if  an  agent  of  the  owner  employs  a  sub-agent,  it  is  sufficient  for  each  suc- 
cessive agent  or  sub-agent  to  give  notice  in  like  manner  to  his  own  j)i"incipal. 

8150.  Additional  time  for  notice  by  indorser. 

Sec.  3150.  Every  party  to  a  negotiable  instrument,  receiving  notice  of  its 
dishonor,  has  the  like  time  thereafter  to  give  similar  notice  to  prior  parties  as 
the  original  holder  had  after  its  dishonor.  But  this  additional  time  is  available 
only  to  the  particular  party  entitled  thereto. 

8151.  Efect  of  notice  of  dishonor. 

Sec  3151.  A  notice  of  the  dishonor  of  a  negotiable  instrument,  if  valid  in 
favor  of  the  party  giving  it,  inures  to  the  benefit  of  all  other  parties  thereto 
whose  right  to  give  the  like  notice  has  not  then  been  lost. 

ARTICLE  VI. 

EXCUSE    OF   presentment    AND    NOTICE. 

8155.  Notice  of  dishonor,  when  excused. 
Sec.  3155.  Notice  of  dishonor  is  excused: 

1.  When  the  party  by  whom  it  should  be  given  cannot,  with  reasonable  dili- 
gence, ascertain  either  the  place  of  residence  or  business  of  the  party  to  be 
charged;  or, 

2.  When  there  is  no  post-office  communication  between  the  town  of  the  party 
by  whom  the  notice  should  be  given  and  the  town  in  which  the  place  of  resi- 
dence or  business  of  the  party  to  be  charged  is  situated;  or, 

3.  When  the  i)arty  to  be  charged  is  the  same  person  who  dishonors  the  instru- 
ment; or, 

4.  When  the  notice  is  waived  by  the  party  entitled  thereto. 

8156.  Presentment  and  notice,  when  excused. 

Sec  3156.  Presentment  and  notice  are  excused  as  to  any  party  to  a  negoti- 
able instrument  who  informs  the  holder,  within  ten  days  before  its  maturity, 
that  it  will  be  dishonored. 

8G6 


NEGOTIABLE  INSTRIIMENTS.  8157-8172 

8157.  Smie. 

Sec.  3157.  If,  before  or  after  the  maturity  of  an  instrument,  an  iiidorser  has 
received  full  security  for  the  amount  thereof,  or  the  7naker  has  assij^'ned  all  hiw 
estate  to  him  as  such  security,  presentment  and  notice  to  him  arc  excused. 

8158.  Delay,  lohen  excused. 

Sec.  3158.  Delay  in  presentment,  or  in  giving  notice  of  dishonor,  is  exciised 
when  caused  by  circumstances  which  the  party  delaying  could  not  have  avoided 
by  the  exercise  of  reasonable  care  and  diligence. 

8159.  Waiver  of  presentment  and  notice. 

Sec.  3159.  A  waiver  of  presentment  waives  notice  of  dishonor  also,  unless 
the  contrary  is  expressly  stipulated;  but  a  waiver  of  notice  does  not  waive  pre- 
sentment. 

8160.  Waiver  of  protest. 

Sec.  3160.  A  waiver  of  protest  on  any  negotiable  instrument  other  than  a 
foreign  bill  of  exchange  waives  presentment  and  notice. 

ARTICLE  VII. 

EXTINCTION    OF   NEGOTUBLE    INSTRUMENTS. 

8164.  Obligation  of  party,  when  extinguished. 

Sec.  3164.  The  obligation  of  a  party  to  a  negotiable  instrument  is  extin- 
guished : 

1.  In  like  manner  with  that  of  jjarties  to  contracts  in  general;  or, 

2.  By  payment  of  the  amount  due  upon  the  instrument,  at  or  after  its  matu- 
rity, in  good  faith  and  in  the  ordinary  course  of  business,  to  any  i)erson  having 
actual  possession  thereof,  and  entitled  by  its  terms  to  payment. 

8165.  [Sec.  3165'''^  was  repealed  by  act  approved  March  30, 1874;  Amendments 
1873-4,  264;  took  effect  July  1,  1874.  J 

CHAPTER   II. 

BILLS   OF   EXCHANGE. 

Article  I.  Form  and  Interpretation 8171 

II.  Days  of  Grace 81H1 

III.  Presentment  for  Acceptance 8185 

IV.  Acceptance ^IdZ 

V.  Acceptance  or  Patmknt  for  Honor 8203 

VI.  Presentment  for  Payment 8211 

VII.  Excuse  of  Presentment  and  Notice   • 8218 

VIII.  Foreign  Bills 8221 

ARTICLE  I. 

FORM    AND   INTERPKETATION    OF    A    BILL. 

8171.  Bill  of  exchange,  what. 

Sec.  3171.  A  bill  of  exchange  is  an  instrument,  negotiable  in  form,  by  which 
one,  who  is  called  the  drawer,  requests  another,  called  the  drawee,  to  pay  a 
specified  sum  of  money. 

8172.  Drawee,  in  case  of  need. 

Sec.  3172.  A  bill  of  exchange  may  give  the  name  of  any  person  in  addition 
to  the  drawee,  to  be  resorted  to  in  case  of  need. 

(a)  Repealed  eection:  in  '^ue  course,  the  obligation  thereof  revives  in  his 

Sec.  3105.  If,  after  its  extinction,  a  negotiable  in-     favor. 
Btnruient  comes  into  the  possession  of  an  indorsee 

867 


8173-8186  CIVIL  CODE, 

8173.  Bill  in  parts  of  a  set. 

Sec.  3173 .  A  bill  of  excLange  may  be  drawn  in  any  number  of  parts,  each 
part  stating  the  existence  of  the  others,  and  all  forming  one  set. 

8174.  When  must  he  in  a  set. 

Sec.  3174.  An  agreement  to  draw  a  bill  of  exchange  binds  the  drawer  to 
execute  it  in  three  parts,  if  the  other  party  to  the  agreement  desires  it. 

8175.  Presentment,  etc.,  of  part  of  set. 

Sec.  3175.  Presentment,  aecej^tance,  or  payment,  of  a  single  part  in  a  set  of 
a  bill  of  exchange,  is  sufficient  for  the  whole. 

8176.  Bill,  trhere  payable. 

Sec.  3176.  A  bill  of  exchange  is  payable: 

1.  At  the  place  where,  by  its  terms,  it  is  made  payable;  or, 

2.  If  it  specify  no  i)lace  of  payment,  then  at  the  place  to  which  it  is 
addressed;  or, 

3.  If  it  be  not  addressed  to  any  place,  then  at  the  place  of  residence  or 
business  of  the  drawee,  or  wherever  he  may  be  found.  If  the  drawee  has  no 
j)lace  of  business,  or  if  his  place  of  business  or  residence  [cannot]  with  reason- 
able diligence  be  ascertained,  presentment  for  payment  is  excused,  and  the  bill 
may  be  jn'otested  for  non-payment.  [Amendment,  approved  March  30,  1874; 
Amendments  1873-4,  264;  took  effect  July  1,  1874.^''> 

8177.  Bights  and  obligations  of  draioer. 

Sec.  3177.  The  rights  and  obligations  of  the  drawer  of  a  bill  of  exchange  are 
the  same  as  those  of  the  first  indorser  of  any  other  negotiable  instrument. 

AKTICLE  II. 

DAYS    OF    GRACE. 

8181.  Days  of  grace. 

Sec.  3181.  Days  of  grace  are  not  allowed. 

ARTICLE  III. 

PRESENTMENT    FOR    ACCEPTANCE. 

8185.  When  a  bill  may  he  presented. 

Sec.  3185.  At  any  time  before  a  bill  of  exchange  is  j^ayable,  the  holder  may 
present  it  to  the  drawee  for  acceptance,  and  if  acceptance  is  refused,  the  bill  is 
dishonored. 

8186.  Presentment  for  acceptance,  hoiv  made. 

Sec.  3186.  Presentment  for  acceptance  must  be  made  in  the  following  man- 
ner, as  nearly  as  by  reasonable  diligence  it  is  practicable : 

1.  The  bill  must  be  presented  by  the  holder  or  his  agent; 

2.  It  must  be  presented  on  a  business  day,  and  within  reasonable  hours; 

3.  It  must  be  presented  to  the  drawee,  or,  if  he  be  absent  from  his  place  of 
residence  or  business,  to  some  person  having  charge  thereof,  or  employed  therein; 
and, 

4.  The  drawee,  on  such  presentment,  may  postpone  his  acceptance  or  refusal 
until  the  next  day.  If  the  drawee  have  no  place  of  business,  or  if  his  place  of 
business  or  residence  cannot,  with  reasonable  diligence,  be  ascertained,  pre- 
sentment for  acceptance  is  excused,  and  the  bill  may  be  protested  for  non- 

(a)  The  original  Ffction.instpad  of  the  lapt  Bfntence         "4.  If  this  cnnnot  be  done,  then  at  the  office  of  any 
commencint;  with  the  v;<  rds  "  if  the  drawee  has  no     notary  ijublic  in  the  state." 
Ijlace  of  bubinttB,"  had  a  tourth  subdivision  as  fol- 
lows: 

868 


NEGOTIABLE  INSTRIBIENTS.  818G-8198 

acceptance.     [Amendment,  approved  March  30,  1874;  Amendments  1873-4,  2G5; 
took  effect  July  1,  1874/='> 

8187.  Presentment  to  joint  drawees. 

Sec.  3187.  Preseutmeut  for  acceptance  to  one  df  several  joint  drawees,  and 
refusal  by  him,  dispenses  with  presentment  to  the  others. 

8188.  When  presentment  to  he  made  to  drawee  in  case  of  need. 

Sec.  3188.  A  bill  of  exchange  which  specifies  a  drawee  in  case  of  need,  must 
be  presented  to  him  for  acceptance  or  payment,  as  the  case  may  bo,  before  it 
can  be  treated  as  dishonored. 

8189.  Presentment,  when  must  he  made. 

Sec.  3189.  When  a  bill  of  exchange  is  payable  at  a  specified  time  after  sight, 
the  drawer  and  indorsers  are  exonerated  if  it  is  not  presented  for  acceptance 
within  ten  days  after  the  time  which  would  suffice,  with  ordinary  diligence,  to 
,  forward  it  for  acceptance,  unless  presentment  is  excused. 

ARTICLE  IV. 

ACCEPTANCE. 

8193.  Acceptance,  how  made. 

Sec.  3193.  An  acceptance  of  a  bill  must  be  made  in  writing,  b}'  the  drawee 
or  by  an  acceptor  for  honor,  and  may  be  made  by  the  accej)tor  writing  his  name 
across  the  face  of  the  bill,  with  or  without  other  words. 

8194.  Holder  entitled  to  acceptance  on  face  of  bill. 

Sec.  3194.  The  holder  of  a  bill  of  exchange,  if  entitled  to  an  acceptance 
thereof,  may  treat  the  bill  as  dishonored  if  the  drawee  refuses  to  write  across 
its  face  an  unqualified  accej)tance. 

8195.  What  acceptance  sufficient  with  consent  of  holder. 

Sec  3195.  The  holder  of  a  bill  of  exchange  may,  without  prejudice  to  his 
rights  against  prior  jjarties,  receive  and  treat  as  a  sufficient  acceptance: 

1.  An  acceptance  written  upon  any  part  of  the  bill,  or  upon  a  separate 
paper; 

2.  An  acceptance  qualified  so  far  only  as  to  make  the  bill  payable  at  a  par- 
ticular place  within  the  city  or  town  in  which,  if  the  accei)tance  was  unqualified, 
it  would  be  payable;  or 

3.  A  refusal  by  the  drawee  to  return  the  bill  to  the  holder  after  ijresentment, 
in  which  case  the  bill  is  payable  immediately,  without  regard  to  its  terms. 

8196.  Acceptance  by  separate  instrument. 

Sec  3196.  The  acceptance  of  a  bill  of  exchange,  by  a  sej:)arate  instrument, 
binds  the  acceptor  to  one,  who,  upon  the  faith  thereof,  has  the  bill  for  value  or 
other  good  consideration. 

8197.  Promise  to  accept,  when  equivalent  to  acceptance. 

Sec  3197.  An  unconditional  promise,  in  writing,  to  accept  a  bill  of  exchange, 
is  a  sufficient  acceptance  thereof,  in  favor  of  every  person  who  ujjon  the  faith 
thereof  has  taken  the  bill  for  value  or  other  good  consideration. 

8198.  Cancellation  of  acceptance. 

Sec  3198.  The  accej)tor  of  a  bill  of  exchange  may  cancel  his  acceptance  at 
any  time  before  delivex'ing  the  bill  to  the  holder,  and  before  the  holder  has, 
with  the  consent  of  the  acceptor,  transferred  his  title  to  another  j)erson  who 
has  given  value  for  it  upon  the  faith  of  such  acceptance.  , 

(a)  The  original  section  did  not  have  the  words  "  or  of  residence  or  business,  or  there  is  no  person  of  dis- 

his  agent"  in  the  first  subdivision.    The  third  and  cretion  therein,  then  to  any  not^iry  public  in  the  state; 

fourtli  subdivisions  were  as  follows:  and, 

"  3.  It  must  be  presented  to  the  drawee,  if  he  can  be         "  4.  If  the  drawee  requests  it,  the  bill  must  be  left 

found  within  the  state;  and  if  not,  then  at  his  place  of  with  him  until  the  same  hour  of  the  next  day,  to  which 

residence  or  business,  if  within  the  statf ,  to  any  per-  time  he  may  postpone  his  acceptance  or  relusal." 
son  of  discretion  therein;  and  if  he  has  no  such  place 

869 


8199-8214  CIVIL  CODE. 

8189.    Whal  acceptance  admits. 

Sec.  3199.  The  acceptance  of  a  bill  of  excliange  admits  the  signature  of  the 
drawer,  but  does  not  admit  the  signature  of  any  indorser  to  be  genuine. 
[Amendment,  approved  March  30,  1874;  Amendments  1873-4,  265;  took  effect  July 
1,  1874.'"' 

AETICLE  V. 

ACCEPTANCE    OR   PAYMENT    FOR    HONOR. 

8203.  When  bill  may  be  accepted  or  paid  for  honor. 

Sec.  3203.  On  the  dishonor  of  a  bill  of  exchange  by  the  drawee,  and,  in  case 
of  a  foreign  bill,  after  it  has  been  duly  protested,  it  maybe  accepted  or  j)aidby 
any  person,  for  the  honor  of  any  party  thereto. 

8204.  Holder  of  bill  of  exchange  bound  to  accept  payment  for  honor. 

Sec.  3204.  The  holder  of  a  bill  of  exchange  is  not  bound  to  allow  it  to  be 
accepted  for  honor,  but  is  bound  to  accej^t  payment  for  honor. 

8205.  Acceptance  for  honor,  hotv  made. 

Sec.  3205.  An  acceptor  or  payor  for  honor  must  write  a  memorandum  upon 
the  bill,  stating  therein  for  whose  honor  he  accepts  or  pays,  and  must  give 
notice  to  such  parties,  with  reasonable  diligence,  of  the  fact  of  such  acceptance 
or  payment.  Having  done  so,  he  is  entitled  to  reimbursement  from  such  parties, 
and  from  all  parties  prior  to  them. 

8206.  Hoiv  enforced. 

Sec.  3206.  A  bill  of  exchange  which  has  been  accepted  for  honor  must  be 
presented  at  its  maturity  to  the  drawee  for  payment,  and  notice  of  its  dishonor 
by  him  must  be  given  to  the  acceptor  for  honor,  in  like  manner  as  to  an  indorser; 
after  which  the  accej)tor  for  honor  must  i^ay  the  bill. 

8207.  Notice  of  dishonor  not  excused  by  acceptance  for  honor. 

Sec.  3207.  The  acceptance  of  a  bill  of  exchange  for  honor  does  not  excuse  the 
holder  from  giving  notice  of  its  dishonor  by  the  drawee. 

AETICLE  VI. 

PRESENTMENT    FOR    PAYMENT. 

8211.  Preseyxtment,  lohen  bUl  not  accepted,  where  made. 

Sec.  3211.  If  a  bill  of  exchange  is  by  its  terms  payable  at  a  particular  place, 
and  is  not  accepted  on  presentment,  it  must  be  presented  at  the  same  place  for 
payment,  when  j^resentment  for  payment  is  necessary. 

8212.  Presentment  of  bill,  pjayable  at  particular  place. 

Sec.  3212.  A  bill  of  exchange,  accej^ted  payable  at  a  particular  place,  must 
be  i:)resented  at  that  place  for  i)ayment,  when  presentment  for  payment  is  nec- 
essary, and  need  not  be  presented  elsewhere. 

8213.  Effect  of  delay  in  pjresentment ,  in  certain  cases. 

Sec.  3213.  If  a  bill  of  exchange,  payable  at  sight  or  on  demand,  without  in- 
terest, is  not  duly  presented  fur  payment  within  ten  days  after  the  time  in  which 
it  could,  with  reasonable  diligence,  be  transmitted  to  the  proper  place  for  such 
presentment,  the  drawer  and  indorsers  are  exonerated,  unless  such  presentment 
is  excused. 

8214.  Effect-in  other  cases. 

Sec.  3214.  Mere  delay  in  presenting  a  bill  of  exchange  payable, with  interest, 
at  sight  or  on  demand,  does  not  exonerate  any  party  thereto. 

(a)   Original  Bt-ction:  and  if  written  upon  tho  bill,  it  also  admits  the  same  to 

Skc,  :il9'J.  The  acreptance  of  a  bill  of  exchnngn  ad-     Ix- gfimiiir,  imd  biuaiug  upon  thodrnwer;  but  it  does 

mit8  the  capacity  of  the  drawer  to  draw  and  indorse  it;     not  admit  the  signature  of  any  indorser  to  be  genuine. 

870 


NEGOTIABLE  INSTRUMENTS.  8218-8232 

ARTICLE  VII. 

EXCUSE    OF    PKESENTMENT     AND    NOTICE. 

8218.  Presentment,  when  excused. 

Sec.  3218.  The  presentment  of  a  bill  of  exchange  for  acceptance  is  excused  if 
the  drawee  has  not  capacity  to  accept  it. 

8219.  Delay,  xolien  excused. 

Sec.  3219.  Delay  in  the  presentment  of  a  bill  of  exchanp^e  for  acceptance  is 
excused,  when  caused  by  circumstances  over  which  the  holder  has  no  control. 

8220.  Presentment  and  notice,  when  excused. 

Sec  3220.  Presentment  of  a  bill  of  exchange  for  acceptance  or  payment,  and 
notice  of  its  dishonor,  are  excused  as  to  the  drawer,  if  he  forbids  the  drawee 
to  accept,  or  the  acceptor  to  pay  the  bill;  or  if,  at  the  time  of  drawing,  he  had 
no  reason  to  believe  that  the  drawee  would  accept  or  pay  the  same. 

ARTICLE  VIII. 

FOREIGN    BILLS. 

8224.  Definitions. 

Sec.  3224.  An  inland  bill  of  exchange  is  one  drawn  and  payable  within  this 
state.     All  others  are  foreign. 

8225.  Protest  necessary. 

Sec  3225.  Notice  of  the  dishonor  of  a  foreign  bill  of  exchange  can  be  given 
only  by  notice  of  its  protest. 

8226.  Protest,  by  whom  made. 

Sec  3226.  Protest  must  be  made  by  a  notary  public,  if  with  reasonable  dili- 
gence one  can  be  obtained;  and  if  not,  then  by  any  reputable  person,  in  the 
presence  of  two  witnesses. 

8227.  Protest,  how  made. 

Sec.  3227.  Protest  must  be  made  by  an  instrument  in  writing,  giving  a  literal 
copy  of  the  bill  of  exchange,  with  all  that  is  written  thereon,  or  annexing  the 
original;  stating  the  presentment,  and  the  manner  in  which  it  was  made;  the 
presence  or  absence  of  the  drawee  or  acce^Dtor,  as  the  case  may  be;  the  refusal 
to  acceptor  to  pay,  or  the  inability  of  the  drawee  to  give  a  binding  acceptance; 
and  in  case  of  refusal,  the  reason  assigned,  if  any;  and,  finally,  protesting 
against  all  the  parties  to  be  charged. 

8228.  Protest,  where  made. 

Sec  3228.  A  protest  for  non-acceptance  must  be  made  in  the  city  or  town  in 
which  the  bill  is  presented  for  acceptance,  and  a  j)rotest  for  non-payment  in  the 
city  or  town  in  which  it  is  jDresented  for  payment. 

8229.  Protest,  tvhen  to  be  made. 

Sec.  3229.  A  protest  must  be  noted  on  the  day  of  presentment,  or  on  the  next 
business  day;  but  it  may  be  written  out  at  any  time  thereafter. 

8230.  Protest,  when  excused. 

Sec  3230.  The  want  of  a  protest  of  a  foreign  bill  of  exchange,  or  delay  in 
making  the  same,  is  excused  in  like  cases  with  the  want  or  delay  of  presentment. 

8231.  Notice  of  protest,  hoio  given. 

Sec  3231.  Notice  of  protest  must  be  given  in  the  same  manner  as  notice  of 
dishonor,  except  that  it  may  be  given  by  the  notary  who  makes  the  protest. 

8232.  Waiver  of  protest. 

Sec  3232.  If  a  foreign  bill  of  exchange  on  its  face  waives  protest,  notice  of 
dishonor  may  be  given  to  any  party  thereto,  in  like  manner  as  of  an  inland  bill; 

871 


8232-8246  CIVIL  CODE. 

except  that  if  an}'  indorser  of  siicli  a  bill  expressl}''  requires  j^rotest  to  be  made, 
b}'  a  direction  written  on  tlie  bill  at  or  before  liis  indorsement,  protest  must  be 
made,  and  notice  thereof  given  to  him  and  to  all  subsequent  indorsers. 

8233.  Declaration  hefore  iMijment  for  honor. 

Sec.  3233.  One  who  i^ays  a  foreign  bill  of  exchange  for  honor  must  declare, 
before  payment,  in  the  presence  of  a  person  authorized  to  make  protest,  for 
whose  honor  he  pays  the  same,  in  order  to  entitle  him  to  reimbursement. 

8234.  Damages  alloived  on  dishonor  of  foreign  bill. 

Sec.  3234.  Damages  are  allowed  as  hereinafter  prescribed,  as  a  full  compen- 
sation for  interest  accrued  before  notice  of  dishonor,  re-exchange,  expenses,  and 
all  other  damages,  in  favor  of  holders  for  value  only,  upon  bills  of  exchange 
drawn  or  negotiated  within  this  state,  and  protested  for  non-acceptance  or  non- 
payment. 

8235.  Bale  of  damages. 

Sec.  3235.  Damages  are  allowed  under  the  last  section  upon  bills  drawn  upon 
any  person : 

1.  If  drawn  upon  any  person  in  this  state,  two  dollars  uj)on  each  one  hundred 
dollars  of  the  iDrincij^al  sum  specified  in  the  bill; 

2.  If  drawn  upon  any  person  out  of  this  state,  but  in  any  of  the  other  states 
west  of  the  Rocky  mountains,  five  dollars  upon  each  hundred  dollars  of  the 
jn-incipal  sum  specified  in  the  bill; 

3.  If  drawn  upon  any  j^erson  in  any  of  the  United  States  east  of  the  Rocky 
mountains,  ten  dollars  upon  each  hundred  dollars  of  the  principal  sum  sj^ecified 
in  the  bill; 

4.  If  drawn  upon  any  j^erson  in  any  place  in  a  foreign  country,  fifteen  dollars 
upon  each  hundred  dollars  of  the  principal  sum  specified  in  the  bill. 

8236.  Interest  on  amount  of  ijvotested  bill. 

Sec  3236.  From  the  time  of  notice  of  dishonor  and  demand  of  payment, 
lawful  interest  must  be  allowed  upon  the  aggregate  amount  of  the  principal 
sum  spiecified  in  the  bill,  and  the  damages  mentioned  in  the  iDreceding  section. 

8237.  Damages,  hoiv  estimated. 

Sec  3237.  If  the  amount  of  a  protested  bill  of  exchange  is  expressed  in 
money  of  the  United  States,  damages  are  estimated  uj^on  such  amount  without 
regard  to  th'e  rate  of  exchange. 

8238.  Same. 

Sec.  3238,  If  the  amount  of  a  protested  bill  of  exchange  is  exi3ressed  in 
foreign  money,  damages  are  estimated  upon  the  value  of  a  similar  bill  at  the 
time  of  protest,  in  the  place  nearest  to  the  place  where  the  bill  was  negotiated, 
and  where  such  bills  are  currently  sold. 

CHAPTER  III. 

PKOMISSOKY    NOTES. 

8244.  Promissory  note,  what. 

Sec.  3244.  A  promissory  note  is  an  instrument,  negotiable  in  form,  whereby 
the  signer  promises  to  pay  a  specified  sum  of  money. 

8245.  Certain  instrximents  promissorij  notes. 

Sec.  3245.  An  instrument  in  the  form  of  a  bill  of  exchange,  but  drawn  upon 
and  accejDted  by  the  drawer  himself,  is  to  be  deemed  a  promissory  note, 

8246.  Jjill  of  exchange,  when  converted  into  a  note. 

Sec  3246,  A  bill  of  exchange,  if  accepted,  with  the  consent  of  the  owner,  by 
a  person  other  than  the  drawee,  or  an  acceptor  for  honor,  becomes  in  eftect  the 
promissory  note  of  such  person,  and  all  prior  parties  thereto  are  exonerated. 

872 


WAIVER  OF  RIGHTS.  8247-8268 

8247.  Certain  sections  applicahle  to  notes. 

Sec.  3247.  Chapter  I  of  this  title,  and  sections  3181  and  3214  of  this  code, 
apj)ly  to  promissory  notes. 

8248.  Effect  of  delay  in  presentment. 

Sec.  3248.  If  a  promissory  note,  payable  on  demand,  or  at  sight,  without 
interest,  is  not  duly  presented  for  payment  within  six  months  from  its  date,  the 
indorsers  thereof  are  exonerated,  unless  such  presentment  is  excused. 

CHAPTER  IV. 

CHECKS. 

8254.  Chech,  what. 

Sec.  3254.  A  check  is  a  bill  of  exchange  drawn  upon  a  bank  or  banker,  or  a 
IDcrson  described  as  such  upon  the  face  thereof,  and  payable  on  demand,  with- 
out interest. 

8255.  Bules  applicahle  to  checks. 

Sec'.  3255.  A  check  is  subject  to  all  the  provisions  of  this  code  concerning 
bills  of  exchange,  except  that: 

1.  The  drawer  and  indorsers  are  exonerated  by  delay  in  presentment,  only 
to  the  extent  of  the  injury  which  they  suffer  thereby; 

2.  An  indorsee,  after  its  apparent  maturity,  but  without  actual  notice  of  its 
dishonor,  acquires  a  title  equal  to  that  of  an  indorsee  before  such  period. 

CHAPTER  V. 

BONDS,    BANK  NOTES,    AND   CEKTIFICATES  OF  DEPOSIT. 

8261.  Banh  note  negotiable  after  payment. 

Sec.  3261.  A  bank  note  remains  negotiable,  even  after  it  has  been  paid  by 
the  maker. 

8262.  [Sec.  3262'''^  was  repealed  by  act  approved  March  30, 1874;  Amendments 
1873-4,  265;  took  effect  July  1,  1874.] 


TITLE  XYI. 

(Snicial  |3roubion0. 

8268.  Parties  may  waive  provisions  of  code. 

Sec.  3268.  Except  where  it  is  otherwise  declared,  the  provisions  of  the  fore- 
going fifteen  titles  of  this  part,  in  respect  to  the  rights  and  obligations  of 
parties  to  contracts,  are  subordinate  to  the  intention  of  the  parties,  when  ascer- 
tained in  the  manner  XDrescribed  by  the  chapter  on  the  interpretation  of  con- 
tracts; and  the  benefit  thereof  may  be  waived  by  any  party  entitled  thereto, 
unless  such  waiver  would  be  against  public  policy. 

(a)  Eepealed  section:  dishonor  •within  his  knowledge,  acquires  a  title  equal 

Sec.  3262.  A  transferee  of  a  bond,  hank  note,  or  cer-     to  that  of  a  transferee  before  such  event, 
tificate  of  deposit,  after  its  apparent  maturity  or  actual 


873 


8274r-8281  CIVIL  CODE. 


DIVISION  FOURTH. 

Part  I.  RELIEF 8274 

II.  SPECIAL  RELATIONS  OF  DEBTOR  AND  CREDITOR. .  .  .   8429 

III.  NUISANCE 8479 

IV.  MAXIMS  OF  JURISPRUDENCE .' 8509 


P^A-KT    I. 

RELIEF. 

Title  I.  Relief  in  Genekal 8274 

XL  Compensatory  Relief 8281 

III.  Specific  and  Peeventive  Relief 8366 


BcUtf 


TITLE    I. 

in  (Beneral 


8274.  Species  of  relief. 

Sec.  3274.  As  a  general  rule,  compensation  is  the  relief  or  remedy  provided 
by  the  law  of  this  state  for  the  violation  of  pi'ivate  rights,  and  the  means  of 
securing  their  observance;  and  specific  and  preventive  relief  may  be  given  in  no 
other  cases  than  those  specified  in  this  part  of  the  Civil  Code. 

8275.  Relief  in  case  of  forfeiture. 

Sec.  3275.  Whenever  by  the  terms  of  an  obligation,  a  party  thereto  incurs  a 
forfeiture,  or  a  loss  in  the  nature  of  a  forfeiture,  by  reason  of  his  failure  to 
comply  with  its  provisions,  he  may  be  relieved  therefrom,  upon  making  full 
compensation  to  the  other  party,  except  in  case  of  a  grossly  negligent,  willful, 
or  fraudulent  breach  of  duty. 

TITLE  11. 


Chapter  I.  Damages  in  General 8281 

II.  Measure  op   Damages 8300 

CHAPTER  I. 

DAMAGES  IN  GENERAL. 

A.BT1CLE    I.    CiKNEItAL   PRINCIPLES 8281 

II.  Intkrest  as  Damages 8287 

III.  ExEMPLAEic  Damages 829-i 

ARTICLE  I. 

general  principles. 
8281.  Ferson  svfferinrj  defrinierd  may  recover  damages. 

Sec.  3281.  Every  person  who  sufiers  detriment  from  the  unlawful  act  or 

874 


DAMAGES.  8281-8300 

omission  of  another,  may  recover  from  the  person  in  fault  a  compensation  there- 
for in  money,  which  is  called  damages. 

8282.  Detriment,  xvhat. 

Sec.  3282,  Detriment  is  a  loss  or  harm  sufifered  in  person  or  property. 

8283.  Injuries  resulting  or  probable  after  suit  brought. 

Sec.  3283.  Damages  maj'  be  awarded,  in  a  judicial  proceeding,  for  detriment 
resulting  after  the  commencement  thereof,  or  certain  to  result  in  the  future. 

ARTICLE  II. 

INTEREST   AS    DAMAGES. 

8287.  Person  entitled  to  recover  damages  may  recover  interest  thereon. 

Sec  3287.  Every  person  who  is  entitled  to  recover  damages  certain,  or  cap- 
able of  being  made  certain  by  calculation,  and  the  right  to  recover  which  is 
vested  in  him  upon  a  particular  day,  is  entitled  also  to  recover  interest  thereon 
from  that  day,  except  during  such  time  as  the  debtor  is  prevented  by  law,  or 
by  the  act  of  the  creditor,  from  paying  the  debt. 

8288.  In  actions  other  than  contract. 

Sec  3288.  In  an  action  for  the  breach  of  an  obligation  not  arising  from  con- 
tract, and  in  every  case  of  opj)ression,  fraud,  or  malice,  interest  may  be  given, 
in  the  discretion  of  the  jury. 

8289.  Limit  of  rate  hy  contract. 

Sec  3289.  Any  legal  rate  of  interest  stipulated  by  a  contract  remains  charge- 
able after  a  breach  thereof,  as  before,  until  the  contract  is  superseded  by  a 
verdict  or  other  new  obligation. 

8290.  Acceptance  of  principal  xoaives  claim  to  interest. 

Sec.  3290.  Accepting  j)ayment  of  the  whole  principal,  as  such,  waives  all 
claim  to  interest. 

ARTICLE  III. 

EXEMPLARY   DAMAGES. 

8294.  Exemplary  damages,  in  what  cases  allowed. 

Sec  3294.  In  any  action  for  the  breach  of  an  obligation  not  arising  from 
contract,  where  the  defendant  has  been  guilty  of  oppression,  fraud,  or  malice, 
actual  or  jiresumed,  the  jury,  in  addition  to  the  actual  damages,  may  give  dam- 
ages for  the  sake  of  example,  and  by  way  of  punishing  the  defendant. 

CHAPTER  II. 

MEASURE   OF  DAMAGES. 

Article    I.  Damages  foe  Bkeach  of  Contract 8300 

II.  Damagks  for  Wrongs 8333 

III.  Penal  Damages 8314 

IV.  General  Provisions 8353 

ARTICLE  I. 

DAMAGES   FOR   BREACH   OF   CONTRACT. 

8300.  Ileasure  of  damages  on  breach  of  contract. 

Sec  3300.  For  the  breach  of  an  obligation  arising  from  contract,  the  measure 
of  damages,  except  where  otherwise  expressly  provided  by  this  code,  is  the 
amount  which  will  compensate  the  party  aggrieved  for  all  the  detriment  prox- 
imately caused  thereby,  or  which  in  the  ordinary  course  of  things,  would  be 

875 


8300-8308  CWIL  CODE. 

likely  to  result  therefrom.     [Ajnendment,  approved  March  30,  1874;  Amendments 
1873-4,  2G5;  took  effect  Jubj  1,  1874/''> 

8301.  Damages  must  be  certain. 

Sec.  3301.  No  damages  can  be  recovered  for  a  breacli  of  contract  which  are 
not  clearly  ascertainable  in  both  their  nature  and  origin. 

8302.  Breach  of  contract  to  pay  liquidated  sum. 

Sec.  3302.  The  detriment  caused  by  the  breach  of  an  obligation  to  pay  money 
only,  is  deemed  to  be  the  amount  due  by  the  terms  of  the  obligation,  Avith 
interest  thereon. 

8303.  Dishonor  of  foreign  bills  of  exchange. 

Sec.  3303.  For  the  dishonor  of  foreign  bills  of  exchange  the  damages  are 
prescribed  by  sections  3235,  3237,  and  3238. 

8304.  Detriment  caused  by  breach  of  covenant  of  seizin,  etc.;  what  is. 

Sec  3304.  The  detriment  caused  by  the  breach  of  a  covenant  of  "  seizin,"  of 
"right  to  convey,"  of  "warranty,"  or  of  "quiet  enjoyment,"  in  a  grant  of  an 
estate  in  real  property,  is  deemed  to  be  : 

1.  The  price  paid  to  the  grantor;  or,  if  the  breach  is  partial  only,  such  j)ro- 
portion  of  the  price  as  the  value  of  the  property  affected  by  the  breach  bore  at 
the  time  of  the  grant  to  the  value  of  the  whole  propert}^; 

2.  Interest  thereon  for  the  time  during  which  the  grantee  derived  no  benefit 
from  the  i:)roperty,  not  exceeding  five  years; 

3.  Any  expenses  properly  incurred  b}'  the  covenantee  in  defending  his  i^os- 
session. 

8305.  Detriment  caused  by  breach  of  covenant  against  incumbrances. 

Sec  3305.  The  detriment  caused  by  the  breach  of  a  covenant  against  incum- 
brances in  a  grant  of  an  estate  in  real  property  is  deemed  to  be  the  amount 
which  has  been  actually  expended  by  the  covenantee  in  extinguishing  either 
the  principal  or  interest  thereof,  not  exceeding  in  the  former  case  a  proportion 
of  the  i^iice  joaid  to  the  grantor  equivalent  to  the  relative  value  at  the  time  of 
the  grant  of  the  property  aff'ected  by  the  breach,  as  compared  with  the  whole, 
or,  in  the  latter  case,  interest  on  a  like  amount. 

8306.  Breach  of  agreement  to  convey  real  property . 

Sec.  3306.  The  detriment  caused  by  the  breach  of  an  agTcement  to  convey  an 
estate  in  real  j^roperty,  is  deemed  to  be  the  price  paid,  and  the  expenses  properly 
incurred  in  examining  the  title  and  prej^aring  the  necessary  papers,  with  interest 
thereon;  but  adding  thereto,  in  case  of  bad  faith,  the  diff"erence  between  the 
price  agreed  to  be  paid  and  the  value  of  the  estate  agreed  to  be  conveyed,  at 
the  time  of  the  breach,  and  the  expenses  jDroperly  incurred  in  preparing  to  enter 
upon  the  land. 

8307.  Breach  of  agreement  to  buy  real  jyroperfy. 

Sec  3307.  The  detriment  caused  by  the  breach  of  an  agreement  to  purchase 
an  estate  in  real  property,  is  deemed  to  be  the  excess,  if  any,  of  the  amount 
which  would  have  been  due  to  the  seller,  under  the  contract,  over  the  value  of 
the  property  to  him. 

8308.  Breach  of  agreement  to  sell  p)ersonal  property ,  not  paid  for. 

Sec  3308.  The  detriment  caused  by  the  breach  of  a  seller's  agreement  to 
deliver  personal  i:)roperty,  the  price  of  Avhich  has  not  been  fully  paid  in  advance, 
is  deemed  to  be  the  excess,  if  any,  of  the  value  of  the  projjerty  to  the  buyer, 
over  the  amount  which  would  have  been  due  to  the  seller  under  the  contract,  if 
it  had  been  fulfilled. 

(a)  The  original  section,  after  the  -wordB  "  detriment  breach,  and  while  it  was  in  his  power  to  perform  the 

proximat'ly  caused   thereby,"   proceeded  as  follows:  contract  upon  his  part,  would  be  likely  to  result  from 

"which  the  jjarty  in  fault  had  notice,  at  the  time  of  such  breach,  or  which,  in  the  ordinary  coui'se  of  things, 

entering  into  the  contract,  or  at  any  time  before  the  would  be  likely  to  result  therefrom." 

876 


DAMAGES.  8309-8317 

8309.  Breach  of  agreement  to  Siell  personal  property  paid  for. 

Sec.  3309.  The  detriment  caused  by  tbe  breach  of  a  seller's  agreement  to 
deliver  personal  property,  the  price  of  which  has  been  fully  paid  to  him  in 
advance,  is  deemed  to  be  the  same  as  in  case  of  ^vrongf^^l  conversion. 

8310.  Breach  of  agreement  to  pay  for  jjersonal  property  mid. 

Sec.  3310.  The  detriment  caused  by  the  breach  of  a  buyer's  agreement  to 
accept  and  pay  for  personal  property,  the  title  to  which  is  vested  in  him,  i8 
deemed  to  be  the  contract  price. 

8311.  Breach  of  agreement  to  buy  personal  property. 

Sec.  3311.  The  detriment  caused  by  the  breach  of  a  buyer's  agi'eement  to 
accept  and  pay  for  personal  property,  the  title  to  which  is  not  vested  in  him,  is 
deemed  to  be: 

1.  If  the  property  has  been  resold,  pursuant  to  section  3049,  the  excess,  if 
any,  of  the  amount  due  from  the  buyer,  under  the  contract,  over  the  net 
proceeds  of  the  resale;  or, 

2.  If  the  property  has  not  been  resold  in  the  manner  prescribed  by  section 
3049,  the  excess,  if  any,  of  the  amount  due  from  the  buyer,  under  the  contract, 
over  the  value  to  the  seller,  together  with  the  excess,  if  any,  of  the  expenses 
properly  incurred  in  carrying  the  property  to  market,  over  those  which  would 
have  been  incurred  for  the  carriage  thereof,  if  the  buyer  had  accepted  it. 

8312.  Breach  of  warranty  of  title  to  personal  property. 

Sec.  3312.  The  detriment  caused  by  the  breach  of  a  warranty  of  the  title  of 
personal  property  sold,  is  deemed  to  be  the  value  thereof  to  the  buyer,  when  he 
is  deprived  of  its  possession,  together  with  any  costs  which  he  has  become 
liable  to  pay  in  an  action  brought  for  the  projDerty  by  the  true  owner. 

8313.  Breach  of  tvarranty  of  quality  of  personal  property. 

Sec  3313.  The  detriment  caused  by  the  breach  of  a  warranty  of  the  quality 
of  personal  property  is  deemed  to  be  the  excess,  if  any,  of  the  value  which  the 
property  would  have  had  at  the  time  to  which  the  warranty  referred,  if  it  had 
been  complied  with,  over  its  actual  value  at  that  time. 

8314.  Breach  of  tvarranty  of  quality  for  special  purpose. 

Sec  3314.  The  detriment  caused  by  the  breach  of  a  warranty  of  the  fitness  of 
an  article  of  personal  property  for  a  particular  purpose,  is  deemed  to  be  that 
which  is  defined  by  the  last  section,  together  with  a  fair  compensation  for  the 
loss  incurred  by  an  effort  in  good  faith  to  use  it  for  such  purpose. 

8315.  Breach  of  carrier's  obligation  to  receive  goods,  etc. 

Sec  3315.  The  detriment  caused  by  the  breach  of  a  earner's  obligation  to 
accept  freight,  messages,  or  passengers,  is  deemed  to  be  the  difference  between 
the  amount  which  he  had  a  right  to  charge  for  the  carriage  and  the  amount 
which  it  would  be  necessary  to  pay  for  the  same  service  when  it  ought  to  be 
performed. 

8316.  Breach  of  carrier's  obligation  to  deliver. 

Sec.  3316.  The  detriment  caused  by  the  breach  of  a  carrier's  obligation  to 
deliver  freight,  where  he  has  not  converted  it  to  his  own  use,  is  deemed  to  be 
the  value  thereof  at  the  place  and  on  the  day  at  which  it  should  have  been 
delivered,  deducting  the  freightage  to  which  he  would  have  been  entitled  if  he 
had  completed  the  delivery. 

8317.  Carrier's  delay. 

Sec  3317.  The  detriment  caused  by  a  caiTier's  delay  in  the  delivery  of  freight, 
is  deemed  to  be  the  depreciation  in  the  intrinsic  value  of  the  freight  during  the 
delay,  and  also  the  depreciation,  if  any,  in  the  market  value  thereof,  otherwise 

877 


8317-8338  CIVIL  CODE. 

than  b}"^  reason  of  a.  depreciation  in  its  intrinsic  value,  at  the  place  where  it 
ought  to  have  been  delivered,  and  between  the  day  at  which  it  ought  to  have 
been  delivered,  and  the  day  of  its  actual  deliveiy. 

8318.  Breach  of  xcarranty  of  authority. 

Sec.  3318.  The  detriment  caused  by  the  breach  of  a  warranty  of  an  agent's 
authority,  is  deemed  to  be  the  amount  which  could  have  been  recovered  and 
collected  from  his  principal  if  the  warranty  had  been  complied  with,  and  the 
reasonable  expenses  of  legal  proceedings  taken,  in  good  faith,  to  enforce  the  act 
of  the  agent  against  his  principal. 

8319.  Breach  of  loromise  of  marriage. 

Sec.  3319.  The  damages  for  the  breach  of  a  promise  of  marriage  rest  in  the 
sound  discretion  of  the  jury. 

ARTICLE  II. 

DAMAGES    FOR    WRONGS.  •     • 

8333.  Breach  of  obligation  other  than  contract. 

Sec  3333.  For  the  breach  of  an  obligation  not  arising  from  contract,  the 
measure  of  damages,  except  where  otherwise  expressly  provided  by  this  code,  is 
the  amount  which  will  compensate  for  all  the  detriment  proximately  caused 
thereby,  whether  it  could  have  been  anticipated  or  not. 

8334.  Wrongful  occupation  of  real  projyerty. 

Sec.  3334.  The  detriment  caused  by  the  wrongful  occupation  of  real  prop- 
erty, in  cases  not  embraced  in  sections  3335,  3344  and  3345  of  this  code,  or  sec- 
tion 1174  of  the  Code  of  Civil  Procedure,  is  deemed  to  be  the  value  of  the  use 
of  the  property  for  the  time  of  such  occupation,  not  exceeding  five  years  next 
preceding  the  commencement  of  the  action  or  proceeding  to  enforce  the  right  to 
damages,  and  the  costs,  if  any,  of  recovering  the  possession. 

8335.  Willful  holding  over. 

Sec  3335.  For  willfully  holding  over  real  property,  by  a  person  who  entered 
upon  the  same,  as  guardian  or  trustee  for  an  infant,  or  by  right  of  an  estate 
terminable  with  any  life  or  lives,  after  the  termination  of  the  trust  or  particular 
estate,  without  the  consent  of  the  party  immediately  entitled  after  .such  termi- 
nation, the  measure  of  damages  is  the  value  of  the  profits  received  during  such 
■   holding  over. 

8336.  Conversion,  measure  of  damages. 

Sec.  333G.  The  detriment   cmisp/l  iw  +v>o  -., rf^i  conversion  of  personal 

§  3336.  Add  to  first  subdivision  :  "  Or  where  the  action  he 
been  '/trosccu/cd  with  reasonable  diligence  the  highest  market  vah  Conversion    with  the    intcr- 

of  the  [troperty  at  aiiy  time  between  the  conversion  and  the  verdii  ' 

without  interest,  at  the  option  of  the  injured  party  and.''"'     [In  ( 

feet,  .laiuiaiy  22,  1871.]  .„^„^^  properly  expended  in  pursuit 

of  the  property.  [Amendment,  approved  March  30,  1874;  Amendments  1873-4, 
266;  took  effect  July  1,  1874.^"' 

8337.  Same. 

Sec  3337.  The  presumption  declared  by  the  last  section  cannot  be  repelled, 
in  favor  of  one  whose  possession  was  wrongful  from  the  beginning,  by  his  sub- 
sequent application  of  the  property  to  the  benefit  of  the  owner,  without  his 
consent. 

8338.  Damages  of  lienor. 

Sec  3338.  One  having  a  mere   lien   on  personal   property,   cannot   recover 

(a)   The  orijjlnal  section   difff'rfd  from  the  antcnd-.  diligence,  the  highest  mnrket  value  of  the  property  at 

ment  in  the  lirst  subdiviKion,  \vhi<h,  after  the  words'  any  time  between  the  converHion  and  the  verdict,  with- 

"intereKt  from  that  time,"  proceeded  n8  follows:  "or,  out  interest,  at  the  option  of  the  injured  party;  and," 
■where  the  action  has  been  prosecuted  with  reasonable 

878 


DAMAGES.  8338-8353 

greater  damages  for  its  conversion,  from  one  having  a  right  thereto  superior  to 
his,  after  his  lien  is  discharged,  than  the  amount  secured  by  the  lien,  and  the 
compensation  allowed  by  section  333G  for  loss  of  time  and  expenses. 

8339.  Seduction. 

Sec.  3339.  The  damages  for  seduction  rest  in  the  sound  discretion  of  the 

8340.  Injuries  to  animals. 

Sec.  3340.  For  wrongful  injuries  to  animals  being  siibjocts  of  property,  com- 
mitted willfully  or  by  gross  negligence,  in  disregard  of  humanity,  exemplary 
damages  may  be  given. 

ARTICLE  III. 

PENAL   DAM.\GES. 

8344.  Failure  to  quit,  after  notice. 

Sec.  3344.  If  any  tenant  give  notice  of  his  intention  to  quit  the  premises, 
and  does  not  deliver  up  the  possession  at  the  time  specified  in  the  notice,  he 
must  paj  to  the  landlord  treble  rent  during  the  time  he  continues  in  i^ossession 
after  such  notice. 

8345.  Tenant,  willfully  holding  over. 

Sec.  3345.  If  any  tenant,  or  any  person  in  collusion  with  the  tenant,  holds 
over  any  lands  or  tenements  after  demand  made  and  one  month's  notice,  in 
"writing  given,  requiring  the  possession  thereof,  such  person  holding  over  must 
pay  to  the  landlord  treble  rent  during  the  time  he  continues  in  possession  after 
such  notice. 

8346.  Injuries  to  trees,  etc. 

Sec.  3346.  For  wrongful  injuries  to  timber,  trees,  or  underwood  upon  the 
land  of  another,  or  removal  thereof,  the  measure  of  damages  is  three  times  such 
a  sum  as  would  compensate  for  the  actual  detriment,  excej^t  where  the  trespass 
was  casual  and  involuntary,  or  committed  under  the  belief  that  the  land  belonged 
to  the  trespasser,  or  where  the  wood  was  taken  by  the  authority  of  highway 
officers  for  the  purposes  of  a  highway;  in  which  cases  the  damages  are  a  sum 
equal  to  the  actual  detriment. 

8347.  Injuries  inflicted  in  a  duel. 

Sec  8347.  If  any  person  slays  or  permanently  disables  another  person  in  a 
duel  in  this  state,  the  slayer  must  provide  for  the  maintenance  of  the  widow  or 
wife  of  the  person  slain  or  permanently  disabled,  and  for  the  minor  children, 
in  such  manner  and  at  such  cost,  either  by  aggregate  comj)ensation  in  damages 
to  each,  or  by  a  monthly,  quarterly,  or  annual  allowance,  to  be  determined  by 
the  court. 

8348.  Same. 

Sec  3348.  If  any  person  slays  or  permanently  disables  another  person  in  a 
duel  in  this  state,  the  slayer  is  liable  for  and  must  pay  all  debts  of  the  person 
slain  or  permanently  disabled. 

ARTICLE  IV. 

general  provisions. 

8358.    Value,  hoio  estimated  in  favor  of  seller. 

Sec  3353.  In  estimating  damages,  the  value  of  property  to  a  seller  thereof  is 
deemed  to  be  the  price  which  he  could  have  obtained  therefor  in  the  market 
nearest  to  the  place  at  which  it  should  have  been  accepted  by  the  buyer,  and  at 
such  time  after  the  breach  of  the  contract  as  would  have  sufficed,  with  reason- 
able diligence,  for  the  seller  to  effect  a  resale. 

879 


8354-83G6  CIVIL  CODE. 

8354.  Value,  hoiv  estimated  in  favor  of  buyer. 

Sec.  3354.  In  estimating'  damages,  except  as  provided  by  sections  3855  and 
8356,  the  value  of  iDi'operty,  to  a  buyer  or  owner  thereof,  deprived  of  its  posses- 
sion, is  deemed  to  be  the  i^iice  at  which  he  might  have  bought  an  equivalent 
thing  in  the  market  nearest  to  the  place  where  the  property  ought  to  have  been 
put  into  his  possession,  and  at  such  time  after  the  breach  of  duty  upon  which 
his  right  to  damages  is  founded  as  would  suffice,  with  reasonable  diligence,  for 
him  to  make  such  a  purchase. 

8355.  Property  of  peculiar  value. 

Sec.  3355.  Where  certain  property  has  a  peculiar  value  to  a  person  recovering 
damages  for  a  deprivation  thereof,  or  injury  thereto,  that  may  be  deemed  to  be 
its  value  against  one  who  had  notice  thereof  before  incurring  a  liability  to  dam- 
ages in  respect  thereof,  or  against  a  willful  wrongdoer. 

8356.  Value  of  thing  in  action. 

Sec.  3356.  For  the  purpose  of  estimating  damages,  the  value  of  an  instru- 
ment in  writing  is  presumed  to  be  equal  to  that  of  the  property  to  which  it 
entitles  its  owner.  [Amend7nent,  approved  March  30,  1874;  Amendments  1873-4, 
266;  took  effect  July  1,  1874.'^' 

8357.  Damages  allowed  in  this  chapter,  exclusive  of  others. 

Sec.  3357.  The  damages  prescribed  by  this  chapter  are  exclusive  of  exemplary 
damages  and  interest,  except  where  those  are  expressly  mentioned. 

8358.  Limitation  of  damages. 

Sec.  3358.  Notwithstanding  the  provisions  of  this  chapter,  no  person  can 
recover  a  greater  amount  in  damages  for  the  breach  of  an  obligation  than  he 
could  have  gained  by  the  full  j)erformance  thereof  on  both  sides,  except  in  the 
cases  specified  in  the  articles  on  exemplary  damages  and  penal  damages,  and  in 
sections  3319,  3339,  and  3340. 

8359.  Damages  to  he  reasonable. 

Sec.  3359.  Damages  must,  in  all  cases,  be  reasonable,  and  where  an  obliga- 
tion of  any  kind  appears  to  create  a  right  to  unconscionable  and  grossly  oppres- 
sive damages,  contrary  to  substantial  justice,  no  more  than  reasonable  damages 
can  be  recovered. 

8360.  Nominal  damages. 

Sec  3360,  When  a  breach  of  duty  has  caused  no  appreciable  detriment  to  the 
party  affected,  he  may  yet  recover  nominal  damages. 


TITLE   III. 

Svmfic  m\h  JJitueutiiic  lldief. 

Chapter  I.  General  Principles 8366 

II.   Specific  Kelief 8375 

III.  Preventive  Relief 8420 

CHAPTEK  I. 

GENERAL    PRINCIPLES. 
8366.  Specif c  relief,  etc.,  when  allowed. 

Sec  3366.  Specific  or  preventive  relief  may  be  given  in  the  cases  specified  in 
this  title,  and  in  no  others. 

(a)  The  original  section,  inetead  of  "  an  iUBtrument  in  writing,"  had  the  words  "  a  thing  in  action." 

880 


SPECIFIC  AND  PKEVENTIVE  RELIEF.  83G7-83S4 

8367.  Specific  relief,  how  given. 
Sec.  3367.  Si:)ecific  relief  is  given: 

1.  By  taking  possession  of  a  thing,  and  delivering  it  to  a  claimant; 

2.  By  compelling  a  party  himself  to  do  that  which  ought  to  be  done;  or, 

3.  By  declaring  and  determining  the  rights  of  parties,  otherwise  than  by  an 
award  of  damages. 

8368.  Preventive  relief,  how  given. 

Sec.  33G8,  Preventive  relief  is  given  by  prohilnting  a  party  from  doing  that 
which,  ought  not  to  be  done. 

8369.  Not  to  enforce  penalty ,  etc. 

Sec.  33G9.  Neither  sj^ecific  nor  preventive  relief  can  be  granted  t(j  eiiloice  a 
penal  law,  except  in  a  case  of  nuisance,  nor  to  enforce  a  penalty  or  forfeiture  in 
any  case. 

CHAPTER    II. 

SPECIFIC  EELIEF. 

Aeticle  I.  Possession  or  Eeal  Propeety 8375 

II.  Possession  of  Personal  Peopeety 8379 

III.  Specific  Peefoemance  of  Obligations 8384 

IV.  Kevision  of  Conteacts 8399 

V.  Rescission  of  Conteacts 84(J6 

VI.  Cancellation  of  Instruments 8412 

ARTICLE  I. 

POSSESSION    OF    EEAL   PROPERTY. 

8375.  Judgment  for  possessioii  or  title. 

Sec.  3375.  A  person  entitled  to  specific  real  property,  by  reason  either  of  a 
perfected  title,  or  of  a  claim  to  title  which  ought  to  be  perfected,  may  recover 
the  same  in  the  manner  prescribed  by  the  Code  of  Civil  Procedure,  either  by  a 
judgment  for  its  possession,  to  be  executed  by  the  sherifi",  or  by  a  judgment 
requiring  the  other  party  to  perfect  the  title,  and  to  deliver  possession  of  the 
property. 

ARTICLE  II. 

POSSESSION    OF   PERSONAIi   PROPERTY. 

8379.  Judgment  for  delivery. 

Sec.  3379.  A  person  entitled  to  the  immediate  possession  of  specific  personal 
property  may  recover  the  same  in  the  manner  provided  b}-  the  Code  of  Civil 
Procedure. 

8380.  Oivner  may  recover  specific  property. 

Sec.  3380.  Any  person  having  the  possession  or  control  of  a  particular  article 
of  personal  property,  of  which  he  is  not  the  owner,  may  be  compelled  specifi- 
cally to  deliver  it  to  the  person  entitled  to  its  immediate  possession.  [Amend- 
ment, approved  March  30,  1874;  Amendments  1873-4,  2GG ;  look  efi'ect  July  1, 
1874.^^' 

ARTICLE  III. 
specific  performance  of  obligations. 

8384.  Specific  performance,  when  compelled. 

Sec.  3384.  Except  as  otherwise  provided  in  this  article,  the  specific  perfoi-m- 

la)  The  original  section  had  the   following  addi-  When  pecuniary  compensation  would  not  afford  adc- 

tional  words  after  "  possession:"  "  in  either  of  the  ful-  quate  relief  for  the  loss  of  the  thing  claimed :  or    a. 

lowin"  cases-  1.  When  the  thing  claimed  is  held  sub-  Wlien  it  would  be  extremely  difhcult  to  ascertain  the 

ject  to  an  express  trust  in  favor  of  the  claimant;  2.  actual  damage  caused  by  its  lose." 

55  881 


8384-8391  CIVIL  CODE. 

ance  of  an  obligation  may  be  comi^elled.     [Amendment,  approved  Ilarch  80, 
1874;  Amendments  1873-4,'26G;  took  effect  July  1,  1874/=^> 

8385.  [Sec.  3385  ^"^  was  repealed  by  act  approved  March  30,   1874;  Amend- 
ments 1873-4,  267;  took  effect  July  1,  1874.] 

8386.  No  remedy  unless  mutual. 

Sec.  3386.  Neither  party  to  an  obligation  can  be  compelled  specifically  to 
perform  it,  unless  the  other  party  thereto  has  performed,  or  is  compellable 
specifically  to  perform,  everything  to  which  the  former  is  entitled  under  the 
same  obligation,  either  completely  or  nearly  so,  together  with  fvtll  compen- 
sation for  any  want  of  entire  performance. 

8387.  Distinction  between  real  and  personal  jiroperty . 

Sec.  3387.  It  is  to  be  presumed  that  the  breach  of  an  agreement  to  transfer 
real  property  cannot  be  adequately  relieved  by  pecuniary  compensation,  and 
that  the  breach  of  an  agreement  to  transfer  personal  property  can  be  thus 
relieved. 

8388.  Contract  signed  by  one  party  only,  may  be  enforced  by  other. 

Sec.  3388.  A  party  who  has  signed  a  written  contract  may  be  compelled 
specifically  to  perform  it,  though  the  other  party  has  not  signed  it,  if  the  latter 
has  performed,  or  offers  to  perform  it  on  his  part,  and  the  case  is  otherwise 
proper  for  enforcing  specific  performance. 

8389.  Liquidation  of  damages  not  a  bar  to  specific  performance. 

Sec.  3389.  A  contract  otherwise  proper  to  be  sjDecifically  enforced,  may  be 
thus  enforced,  though  a  penalty  is  imposed,  or  the  damages  are  liquidated  for 
its  breach,  and  the  party  in  default  is  willing  to  pay  the  same. 

8390.  What  cannot  be  specifically  enforced. 

Sec.  3390.  The  following  obligations  cannot  be  specifically  enforced: 

1.  An  obligation  to  render  personal  service; 

2.  An  obligation  to  employ  another  in  personal  service; 

3.  An  agreement  to  submit  a  controversy  to  arbitration; 

4.  An  agreement  to  perform  an  act  which  the  party  has  not  j^ower  lawfully  to 
perform  when  required  to  do  so; 

5.  An  agreement  to  procure  the  act  or  consent  of  the  wife  of  the  contracting 
party,  or  of  any  other  third  person;  or, 

6.  An  agreement,  the  terms  of  which  are  not  sufficiently  certain  to  make  the 
precise  act  which  is  to  be  done  clearly  ascertainable. 

8391.  Wlial  parties  cannot  be  compelled  to  perform. 

Sec.  3391.  Specific  performance  cannot  be  enforced  against  a  party  to  a  con- 
tract in  any  of  the  following  cases: 

1.  If  he  has  not  received  an  adequate  consideration  for  the  contract; 

2.  If  it  is  not,  as  to  him,  just  and  reasonable; 

3.  If  his  assent  was  obtained  by  the  misrepresentations,  concealment,  cir- 
cumvention, or  unfair  practices  of  any  party  to  whom  performance  would 
becouie  due  under  the  contract,  or  by  any  promise  of  such  partj'  which  has  not 
been  substantially  fulfilled;  or, 

4.  If  his  assent  was  given  under  the  influence  of  mistake,  misaj)i5rehension, 
or  surprise,  except  that  where  the  contract  provides  for  comjoensation  in  case 

(a)  The   f)riginal  Bection   had   the   following  addi-  the  pjirties  to  the  contract,  that  ppccitic  porforniance 
tioual  words  alter  "  compt-lUd:"  "  1.  When  the  act  to  tlurecjf  may  be  required  by  either  party,  or  that  dam- 
be  done  is  in  the  performance,  wholly  or  partly,  of  an  ayes  shall  not  be  considered  adequate  relief." 
express  lru;-t;  2.  When  the  act  to  be  done  is  such  that  (h)  Uejjealed  section: 

pecuniary  coiiipensation  for  Its  uon-iierf'orniance  would  Skc.  Sasr).  When  either  of  the  parties  to  an  ohliga- 

not  afford  adecpiate  relief;  3.  When   it  would  be  ex-  tion  is  entitled  to  a  specific  performance  thereof,  ac- 

tremelv  difficult  to  ascertain  the  ac  tual  damage  caused  cording  to  the  provisions  of  the  last  section,  the  other 

by  the'non-performance  of  the  act  to  be  done;  or,  4.  party  is  also  entitled  to  it,  though  not  within  those 

When  it  has  been  expressly  agreed,  in  writing,  between  provisions." 

882 


SPECIFIC  AND  PREVENTIVE  RELIEF.  8392-8400 

of  mistake,  a  mistake  within  the  scope  of  such  provision  may  he  coinponsated 
for,  and  the  contract  speciticall}^  enforced  in  otlier  respects,  if  ^jroper  to  be  so 
enforced. 

8392.  JVJiat  parties  cannot  have  specific  performance  in  their  favor. 

Sec.  3392.  Specific  performance  canuot  be  enforced  in  favor  of  a  party  who 
has  not  fully  and  fairly  performed  all  the  conditions  precedent  on  his  part  to 
the  obligation  of  the  other  party,  except  Avhere  his  failure  to  perform  is  only 
partial,  and  either  entirely  immaterial,  or  capable  of  being  fully  compensated, 
in  which  case  specific  performance  may  be  compelled,  ujjon  full  compensation 
being-  made  for  the  default. 

8393.  [Sec.  3393^''>  was  repealed  by  act  approved  March  80,  1874;  Amend- 
ments 1873-4,  267;  took  efiect  July  1,  1874.J 

8394.  Agreement  to  sell  property  by  one  who  has  no  title. 

Sec  3394.  An  agreement  for  the  sale  of  property  cannot  be  specifically 
enforced  in  favor  of  a  seller  who  cannot  give  to  the  buyer  a  title  free  from 
reasonable  doubt. 

8395.  Belief  against  paiiies  claiming  under  person  bound  to  perform. 

Sec  3395.  Whenever  an  obligation  in  respect  to  real  property  would  ha 
si^ecifically  enforced  against  a  particular  person,  it  may  be  in  like  manner 
enforced  against  any  other  person  claiming  under  him  by  a  title  created  subse- 
quently to  the  obligation,  except  a  purchaser  or  incumbrancer  in  good  faith  and 
for  value,  and  except,  also,  that  any  such  person  may  exonerate  himself  by  con- 
veying all  his  estate  to  the  person  entitled  to  enforce  the  obligation. 

ARTICLE  IV. 

REVISION    OF    CONTRACTS. 

8399.  When  contract  may  be  revised. 

Sec  3399.  When,  through  fraud  or  a  mutual  mistake  of  the  parties,  or  a 
mistake  of  one  party,  which  the  other  at  the  time  knew  or  susp)ected,  a  written 
contract  does  not  truly  express  the  intention  of  the  jDarties,  it  may  be  revised 
on  the  apj)lication  of  a  party  aggrieved,  so  as  to  express  that  intention,  so  far  as 
it  can  be  done  without  prejudice  to  rights  acquired  by  third  persons,  in  good 
faith  and  for  value. 

8400.  Presumption  as  to  intent  of  parties. 

Sec  3400.  For  the  purpose  of  revising  a  contract,  it  must  be  presumed  that 
all  the  parties  thereto  intended  to  make  an  equitable  and  conscientious  agree- 
ment. 

8401.  Principles  of  revision. 

Sec  3401.  In  revising  a  written  instrument,  the  court  may  inquire  what  the 
instrument  was  intended  to  mean,  and  what  were  intended  to  be  its  legal  con- 
sequences, and  is  not  confiined  to  the  inquiry  what  the  language  of  the  instru- 
ment was  intended  to  be. 

8402.  Enforcement  of  revised  contract. 

Sec  3402.  A  contract  may  be  first  revised  and  then  specifically  enforced. 

ARTICLE  V. 

RESCISSION    OF    CONTRACTS. 

8408.    When  rescission  may  be  adjudged.  , 

Sec  3406.  The  rescission  of  a  written  contract  may  be  adjudg:ed,  on  the 
application  of  a  party  aggrieved : 

(a)  Repealed  section:  required  to  iierform  than   its  refusal  would  operate 

Seo.  33yti.  Specific  performance  cannot  be  compelled     upon  the  party  seeking  it. 
when  it  would  operate  more  harshly  upon  the  party 

883 


8406-8423  CIVIL  CODE. 

1.  In  any  of  the  cases  mentioned  in  section  1589;  or, 

2.  Where  the  contract  is  unlawful,  for  causes  not  apparent  upon  its  face,  and 
the  parties  were  not  equally  in  fault;  or, 

3.  When  the  public  interest  will  be  prejudiced  by  permitting  it  to  stand. 

8407.  Bescission  for  mistake. 

Sec.  3407.  Rescission  cannot  be  adjudged  for  mere  mistake,  unless  the  party 
against  whom  it  is  adjudged  can  be  restored  to  substantially  the  same  position 
as  if  the  contract  had  not  been  made. 

8408.  Court  may  require  party  rescindivg  to  do  eqxiity. 

Sec.  3408.  On  adjudging  the  rescission  of  a  contract,  the  court  may  require 
the  part}'  to  whom  such  relief  is  granted  to  make  any  compensation  to  the  other 
which  justice  may  require. 

ARTICLE  VI. 

CANCELLATION    OF    INSTRUMENTS. 

8412.  When  cancellation  may  he  ordered. 

Sec  3412.  A  written  instrument,  in  i^espect  to  which  there  is  a  reasonable 
apprehension  that  if  left  outstanding  it  may  cause  serious  injury  to  a  person 
against  whom  it  is  void  or  voidable,  may,  upon  his  application,  be  so  adjudged, 
and  ordered  to  be  delivered  up  or  canceled. 

8413.  Instrument  obviously  void. 

Sec  3413.  An  instrument,  the  invalidity  of  which  is  apparent  uj)on  its  face, 
or  upon  the  face  of  another  instrument  which  is  necessary  to  the  use  of  the 
former  in  evidence,  is  not  to  be  deemed  capable  of  causing  injury,  within  the 
provisions  of  the  last  section. 

8414.  Cancellation  in  part. 

Sec  3414.  Where  an  instrument  is  evidence  of  different  rights  or  obligations, 
it  may  be  canceled  in  part,  and  allowed  to  stand  for  the  residue. 

CHAPTER  III. 

PEEYENTIVE   RELIEF. 

8420.  Preventive  relief,  how  granted. 

Sec  3420.  Preventive  relief  is  granted  by  injunction,  provisional  or  final. 

8421.  Provisional  injunctions. 

Sec.  3421.  Provisional  injunctions  are  regulated  by  the  Code  of  Civil  Pro- 
cedure. 

8422.  Injunction,  xohen  allowed. 

Sec  3422.  Except  where  otherwise  provided  by  this  title,  a  final  injunction 
may  be  granted  to  prevent  the  breach  of  an  obligation  existing  in  favor  of  the 
applicant: 

1.  Where  pecuniar}-  compensation  would  not  afford  adequate  relief; 

2.  Where  it  would  be  extremely  difficult  to  ascertain  the  amount  of  compen- 
sation which  would  afford  adequate  relief; 

3.  Where  the  restraint  is  necessary  to  prevent  a  multiplicity  of  judicial  pro- 
ceedings; or, 

4.  Where  the  obligation  arises  from  a  trust. 

8423.  Injunction,  tchen  not  alloiced. 

Sec.  3423.  An  injunction  cannot  be  granted: 

1.  To  stay  a  judicial  in-oceeding  j^ending  at  the  commencement  of  the  action 
in  which  the  injunction  is  demanded,  unless  such  restraint  is  necessary  to  pre- 
vent a  multiplicity  of  such  i^roceedings; 

884 


DEBTOR  AND  CREDITOR.  8423-8433 

2.  To  stay  proceeding-s  in  a  court  of  the  Unitetl  States; 

3.  To  stay  proceedings  in  another  state  upon  a  judgment  of  a  court  of  that 
state ; 

4.  To  prevent  the  execution  of  a  public  statute,  by  oflicers  of  the  hiw,  furtlic 
public  benefit; 

5.  To  prevent  the  breach  of  a  contract,  the  performance  of  which  wcjuld  not 
be  specifically  enforced; 

G.  To  prevent  the  exercise  of  a  public  or  private  office,  in  a  lawful  manner,  by 
the  person  in  possession ; 

7.  To  j^revent  a  legislative  act  by  a  municipal  corporation.  \Amriirlineiif,  ap- 
2yroved  March  SO,  1874;  Amendments  1873-4,  267;  took  effeclJahj  1,  1874.'*> 


I^A.IIT    II. 

SPECIAL  RELATIONS  OF  DEBTOR  AND  CREDITOR. 

Title  I.  General  Principles 8429 

II.  Fraudulent  Instruments  and  Transfers 8439 

III.  Assignments  for  the  Benefit  of  Creditors 8449 


TITLE   I. 

(Bcucral  ilrinriplc^. 

8429.  Whois  a  debtor. 

Sfc.  3429.  A  debtor,  within  the  meaning  of  this  title,  is  one  who,  by  reason 
of  an  existing  obligation,  is  or  may  become  liable  to  pay  money  to  another, 
whether  such  liability  is  certain  or  contingent. 

8430.  Who  is  a  creditor. 

Sec.  3430.  A  creditor,  within  the  meaning  of  this  title,  is  one  in  whose  favor 
an  obligation  exists,  by  reason  of  w^hich  he  is,  or  may  become,  entitled  to  the 
payment  of  money. 

8431.  Contracts  of  debtor  are  valid. 

Sec.  3431.  In  the  absence  of  fraud,  every  contract  of  a  debtor  is  valid  against 
all  his  creditors,  existing  or  subsequent,  who  have  not  acquii-ed  a  lien  on  the 
property  affected  by  such  contract. 

8432.  Payments  in  preference. 

Sec.  3432.  A  debtor  may  pay  one  creditor  in  preference  to  another,  or  may 
give  to  one  creditor  secui-ity  for  the  payment  of  his  demand  in  preference  to 
another. 

8433.  Relative  rights  of  different  creditors. 

Sec.  3433.  Where  a  creditor  is  entitled  to  resort  to  each  of  several  funds  for 
the  satisfaction  of  his  claim,  and  another  person  has  an  interest  in,  or  is  entitled 

(a)  .The  orisinal  section  had  nine  subdivisions,  the  nuisance;  exceiit  that  in  an  action  lor  divorce,  an  in- 

seventh  and  eighth  of  which  were  like  tlie  above  sixth  junction  may  be  granted  to  prevent  interference  with 

and  seventh.     The  sixth  and  ninth  of  the  original  were  a  wife  or  child ; 

as  follows:  '"J-  Where  relief,  equally  efficacious,  can  bP  obtained 

"  6.  To  prevent  an  injury  to  the  iserson,  character,  or  by  any  other  usual  mode  of  proceeding,  except  in  caae 

personal  relations  of  the  applicant,  not  amounting  to  a  of  breach  of  trust." 

885 


8433-8449  CIVIL  CODE. 

as  a  creditor  to  resort  to  some,  but  not  all  of  them,  tLe  latter  may  require  the 
former  to  seek  satisfaction  from  those  funds  to  which  the  latter  has  no  such 
claim,  so  far  as  it  can  be  done  without  impairing  the  right  of  the  former  to  com- 
j)lete  satisfaction,  and  without  doing  injustice  to  third  persons. 


TITLE  II. 

8439.  Transfer,  etc.,  xcith  iiiterd  to  defraud  creditors. 

Sec.  3439.  Every  transfer  of  j)roperty  or  charge  thereon  made,  every  obliga- 
tion incurred,  and  every  judicial  proceeding  taken,  with  intent  to  delay  or 
defraud  any  creditor  or  other  person  of  his  demands,  is  void  against  all  creditors 
of  the  debtor,  and  their  successors  in  interest,  and  against  any  person  upon 
whom  the  estate  of  the  debtor  devolves  in  trust  for  the  benefit  of  others  than 
the  debtor. 

8440.  Certain  transfers  presumed  fratululent . 

Sec.  3440.  Every  transfer  of  personal  property,  other  than  a  thing  in  action, 
or  a  shijo  or  cargo  at  sea,  or  in  a  foreign  port,  and  every  lieu  thereon,  other  than 
a  mortgage,  when  allowed  by  law,  and  a  contract  of  bottomry  or  respondentia, 
is  conclusively  presumed,  if  made  by  a  i^erson  having  at  the  time  the  possession 
or  control  of  the  jDroperty,  and  not  accompanied  by  an  immediate  delivery,  and 
followed  by  an  actual  and  continued  change  of  possession  of  the  things  trans- 
ferred, to  be  fraudulent,  and  therefore  void,  against  those  who  are  his  creditors 
while  he  remains  in  possession,  and  the  successors  in  interest  of  such  creditors, 
and  against  any  persons  on  whom  his  estate  devolves  in  trust  for  the  benefit  of 
others  than  himself,  and  against  purchasers  or  incumbrancers  in  good  faith 
subsequent  to  the  transfer. 

8441.  Creditor's  right  must  be  judicially  ascertained. 

Sec  3441.  A  creditor  can  avoid  the  act  or  obligation  of  his  debtor  for  fraud 
only  where  the  fraud  obstructs  the  enforcement,  by  legal  process,  of  his  right 
to  take  the  property  afi'ected  by  the  transfer  or  obligation. 
8442  Question  of  fraud,  how  determined. 

Sec  3442.  In  all  cases  arising  under  section  1227,  or  tinder  the  provisions  of 
this  title,  except  as  otherwise  provided  in  section  3440,  the  question  of  fraud- 
ulent intent  is  one  of  fact,  and  not  of  law;  nor  can  any  transfer  or  charge  be 
adjudged  fraudulent  solely  on  the  ground  that  it  was  not  made  for  a  valuable 
consideration. 


TITLE   III. 

2V555iGmitcnl!5  for  tijc  JJciicfJl  of  (Ticiiitoisi. 

8449.    When  debtor  may  execute  assignment. 

Sec.  3449.  An  insolvent  debtor  may,  in  good  faith,  execute  an  assignment  of 
propei-ty  to  one  or  more  assignees,  in  trust  for  the  satisfaction  of  his  creditors, 
in  conformity  to  the  provisions  of  this  chapter;  subject,  however,  to  the  pro- 
visions of  this  code  relative  to  trusts  and  to  fraudulent  transfers,  and  to  the 
restrictions  imposed  by  law  upon  assignments  by  sj^ecial  partnershij)S,  by  cor- 
j)orations,  or  by  other  specific  classes  or  persons. 

88(J 


DEBTOR  AND  CREDITOR.  8450-8458 

8450.  Insolvency,  ivhnt. 

Sec.  3450.  A  debtor  is  insolvent,  Avithin  the  meaning  of  tliis  title,  wlion  be  is 
unable  to  pay  bis  debts  from  bis  own  means,  as  tbey  become  due. 

8451.  Certain  transfers  not  affected. 

Sec,  3451.  Tbe  provisions  of  this  title  do  not  prevent  a  person  residing  in 
another  state  or  country  from  making  there,  in  good  faith  and  without  intent 
to  evade  the  laws  of  this  state,  a  transfer  of  property  situated  within  it;  nor  do 
they  affect  the  po-sver  of  a  person,  although  insolvent  and  within  this  state,  to 
transfer  property  to  a  pprticular  creditor  for  the  piirpose  of  paying  or  securing 
the  whole  or  part  of  a  debt  owing  to  such  creditor,  whether  in  his  own  light 
or  otherwise. 

8452.  What  debts  may  be  secured. 

Sec.  3452.  An  assignment  for  tbe  benefit  of  creditors  may  provide  for  any 
subsisting  liability  of  the  assignor  which  he  might  lawfully  pay,  Avhotlier  abso- 
lute or  contingent. 

8453.  [Secs.  3453,  3454,  3455,  and  345G,<''>  were  repealed  by  act,  approved  March 
30,  1874;  Amendments  1873-4,  2G7;  took  effect  July  1,  1874.] 

8457.  Assignment,  u-hen  void. 

Sec.  3457.  An  assignment  for  the  benefit  of  creditors  is  void  against  any  cred- 
itor of  the  assignor  not  assenting  thereto,  in  the  following  cases: 

1.  If  it  give  a  preference  of  one  debt  or  class  of  debts  over  another; 

2.  If  it  tend  to  coerce  any  creditor  to  release  or  compromise  his  demand; 

3.  If  it  proAdde  for  the  payment  of  any  claim  known  to  the  assignor  to  be 
false  or  fraudulent,  or  for  the  payment  of  more  upon  any  claim  than  is  known 
to  be  justly  due  from  the  assignor; 

4.  If  it  reserve  any  interest  in  the  assigned  property,  or  in  any  part  thereof, 
to  the  assignor,  or  for  his  benefit,  before  all  his  existing  debts  are  paid; 

5.  If  it  confer  upon  the  assignee  any  power  which,  if  exercised,  might  prevent 
or  delay  the  immediate  conversion  of  the  assigned  iDrojierty  to  the  purposes  of 
the  trust; 

6.  If  it  exempt  him  from  liabilit}^  for  neglect  of  duty  or  misconduct.  [Amend- 
ment,  approved  March  30,  1874;  Amendments  1873-4,  2G7;  took  effect  July  1, 
1874.^^" 

8458.  The  instrument  of  assignment. 

Sec.  3458.  An  assignment  for  the  benefit  of  creditors  must  be  in  writing,  sub- 
scribed by  the  assignor,  or  by  his  agent  thereto  authorized  by  writiiig.  It 
must  be  acknowledged,  or  proved  and  certified,  in  the  mode  prescribed  by  the 
chax^ter  on  recording  transfers  of  real  property,  and  recorded  as  required  by 
sections  3463  and  3464;  but  recording  in  one  county  constitutes  a  compliance 
with  the  following  section. 

(a)  Repealed  sections:  Seo.  3455.  No  provision  in  an  ssslgnnjent,  giving  a 
Sec.  34.')3.  Except  as  otherwise  speciaUy  provided  by  preference  to  a  creditor,  can  affect  or  impair  any  rinht 
statute,  an  assignment  by  an  insolvent  debtor,  for  the  of  another  creditor  to  priority  of  payment,  whether 
benefit  of  creditors,  may  give  a  preference  to  one  or  created  by  law,  or  arising  from  an  obligation  or  trans- 
more  creditors  or  classes  of  creditors  in  the  following  action  of  the  parties. 

cases,  and  in  no  others:  1.  Judgments  may  be -pre-  Sec.  345i;.  Joiut.or  joint  and  seveinl  debtors,  can  pre- 
ferred to  debts  not  in  judgment;  2.  Debts  which  are  fer  their  joint  cr.ditors  only  out  of  jdint  property:  and 
liens  or  charges  upon  the  assigned  property,  or  upon  can  prefer  the  inaividu:il  creditors  ol  each,  only  out  of 
some  part  of  it,  may  be  preferred  to  debts  which  are  the  separate  property  of  eac'h.  ,  ,.  .  .  ., 
not  such  liens  or  charges;  3.  Debts  for  money  or  other  (6)  The  original  section  had  eight  subdivisions;  the 
property  lent  without  interest  may  be  preferred  for  third,  fifth,  sixth  and  seventh  were  like  the  second. 
debts  for  money  lent  upon  interest,  or  for  property  fourth,  fifth  and  sixth  above.  In  the  first  it  did  net 
sold-  i.  Debts  due  from  the  assignor  bv  virtue  of  a  have  the  word  "unlawful,"  and  in  the  Ion rth.  other- 
trust  may  be  preferred  to  debts  whiih  are  nottliusdne;  wise  like  the  above  third,  it  did  n.it  have  the  words 
and,  5.  Debts  for  personal  services  performed  within  "  known  to  be."  The  second  and  eighth  were  as  fol- 
six  months  next  before  the  assignment  may,  to  an  ex-  lows:  ..  ,  ,  » 
tent  not  exceeding  one  hundred  dollars  to  any  one  per-  "  'i.  If  it  gives  a  preference  dependent  upon  any  con- 
son,  be  preferred  to  other  debts  not  within  any  of  the  dition  or  contingency,  or  with  any  power  of  revocation 
preceding  classes.  reserved;                                        _                         ^^ 

Sec.  34i1.  A  preference,  in  an  assignment  for  the  "8.  If  it  violates  section  34ob  of  this  code. 
benefit  of  creditors,  can  only  be  given   absolutely,  and 
without  reserving  any  power  of  revocation. 

887 


8459-8465  CIVIL  CODE. 

8459.  Compliance  with  provisions  of  last  section  necessary  to  validity  of  assignment. 
Sec.  3459.  Unless  the  provisions  of  the  last  section  are  complied  with,  an 

assignment  for  the  benefit  of  creditors  is  void  against  every  creditor  of  the 
assignor  not  assenting  thereto. 

8460.  Assignee  takes,  subject  to  riglits  of  third  j^arties. 

Sec.  3460.  An  assignee  for  the  benefit  of  creditors  is  not  to  be  regarded  as  a 
l^urchaser  for  value,  and  has  no  greater  rights  than  his  assignor  had,  in  respect 
to  things  in  action  transferred  by  the  assignment. 

8461.  Inventory  required. 

Sec.  3461.  Within  twenty  days  after  an  assignment  is  made  for  the  benefit  of 
creditors,  the  assignor  must  make  and  file,  in  the  manner  prescribed  by  section 
3463,  a  full  and  true  inventory,  showing: 

1.  All  the  creditors  of  the  assignor; 

2.  The  place  of  residence  of  each  creditor,  if  known  to  the  assignor;  or  if  not 
known,  that  fact  must  be  stated; 

3.  The  sum  owing  to  each  creditor  and  the  nature  of  each  debt  or  liability, 
whether  arising  on  written  security,  account,  or  otherwise; 

4.  The  true  consideration  of  the  liability  in  each  case,  and  the  place  where  it 
arose ; 

5.  Every  existing  judgment,  mortgage,  or  other  security  for  the  payment  of 
any  debt  or  liability  of  the  assignor; 

6.  All  projDcrty  of  the  assignor  at  the  date  of  the  assignment,  which  is  exempt 
by  law  from  execution;  and, 

7.  All  of  the  assignor's  property  at  the  date  of  the  assignment,  both  real  and 
personal,  of  every  kind,  not  so  exempt,  and  the  incumbrances  existing  thereon, 
and  all  vouchers  and  securities  relating  thereto,  and  the  value  of  such  property 
according  to  the  best  knowledge  of  the  assignor. 

8462.  Verification  of  inventory. 

Sec.  3462.  An  affidavit  must  be  made  by  every  person  executing  an  assign- 
ment for  the  benefit  of  creditors,  to  be  annexed  to  and  filed  with  the  inventor}' 
mentioned  in  the  last  section,  to  the  effect  that  the  same  is  in  all  respects  just 
and  true,  according  to  the  best  of  such  assignor's  knowledge  and  belief. 

8463.  Recording  assignment  and  filing  inventory. 

Sec.  3463.  An  assignment  for  the  benefit  of  creditors  must  be  recorded,  and 
+1..C.  Ln-vAntorv  required  by  section  3461  filed  with  the  county  recorder  of  the 

.iif^l^^r  ""  ""'  " ''''  "  "'  ^"^"^  ""«•    tl"  ^"^et,  :^  assignment;  or,  if  he 

J  the  county  m  which  his 

ACT  TO  piioTKc'T  .srocKiiof  DPRQ  av,^  „  li^d  uot  theu  a  rcsideuce 

•  I  '(.KIlOLnKRS    AND    PKRSON.S    DKALUNG    WITH  ,  ■.  i        •  i    •     t      ii 

COlil'OKATIONS    IN    THIS    STATK  thC   COUllty  lU  WhlCh  thC 

.  .     .           olhctr  of  any  corporation  formed  or  oxistlno- 
-f,  or  transai'tinL'  bnsiiiPss  In  fi,„  „ " 

litors  is  executed  b}'  more 
the  inventory  required  by 
lunty  in  which  an}'  of  the 
,  not  then  residing  in  this 

^"h  a  L'rcater  vai ...  ,1 1'  "'"^■'  '^'^  '''"^'^ '"  «"^'l'  ^'or-  I's  IS  void  against  creditors 

)rancers  m  good  laith  and 
entory  required  by  section 
enty  days  after  the  dale  of 


DEBTOR  AND  CREDITOR.  84GG-8i73 

8466.  Assignment  of  real  property. 

Sec.  34GG.  Where  an  assignment  for  tlie  benefit  of  creditors  embraces  real 
i:)roi5erty,  it  is  subject  to  the  provisions  of  Article  IV  of  the  chapter  on  record- 
ing transfers,  as  well  as  to  those  of  this  title. 

8467.  Bond  of  assignees. 

Sec.  34G7.  Within  thirty  days  after  the  date  of  an  assignment  for  the  benefit 
of  creditors,  the  assignee  must  enter  into  a  bond  to  the  people  of  this  state,  in 
such  amount  as  may  be  fixed  by  the  county  judge  of  the  county  in  which  the 
original  inventory  is  filed,  with  sufficient  sureties,  to  be  approved  by  such  judge, 
and  conditioned  for  the  faithful  discharge  of  the  trust,  and  the  due  accounting 
for  all  moneys  received  by  the  assignee,  which  bond  must  be  filed  in  the  same 
office  with  the  original  inventory. 

8468.  Conditions  of  disiMsal  and  conversion. 

Sec.  34G8.  Until  the  inventory  and  affidavit  required  by  sections  34G1  and 
34G2  have  been  made  and  filed,  and  the  assignee  has  given  a  bond  as  required 
by  the  last  section,  the  assignee  for  the  benefit  of  creditors  has  no  authority  to 
dispose  of  the  estate  or  convert  it  to  the  purposes  of  the  trust. 

8469.  Accountings.  I 

Sec.  34G9.  After  six  months  from  the  date  of  an  assignment  for  the  benefit  of 
creditors,  the  assignee  may  be  required,  on  the  petition  of  any  creditor,  to 
account  before  the  county  judge  of  the  county  where  the  accompanying  inven- 
tory was  filed,  in  the  manner  prescribed  by  the  insolvent  laws  of  this  state. 

8470.  Property  exempt. 

Sec.  3470.  Property  exempt  from  execution,  and  insurance  upon  the  life  of 
the  assignor,  do  not  j)ass  to  the  assignee  by  a  general  assignment  for  the  benefit 
of  creditors,  unless  the  instrument  specially  mentions  them,  and  declares  an 
intention  that  they  should  pass  the"reby. 

8471.  Compensation. 

Sec.  3471.  In  the  absence  of  any  provision  in  the  assignment  to  the  contrary, 
an  assignee  for  the  benefit  of  creditors  is  entitled  to  the  same  commissions  as 
are  allowed  by  law  to  executors  and  guardians;  but  the  assignment  cannot 
grant  more,  and  may  restrict  the  commissions  to  a  less  amount,  or  deny  them 
altogether. 

8472.  Assignees  protected  for  acts  done  in  good  fiith. 

Sec.  3472.  An  assignee  for  the  benefit  of  creditors  is  not  to  be  held  liable  for 
his  acts,  done  in  good  faith,  in  the  execution  of  the  trust,  merely  for  the  reason 
that  the  assignment  is  afterwards  adjudged  void. 

8473.  Assent  of  creditor  necessary  to  modification  of  assignment . 

Sec.  3473.  An  assignment  for  the  benefit  of  creditors,  which  has  been  ex- 
ecuted and  recorded  so  as  to  transfer  the  property  to  the  assignee,  cannot 
afterwards  be  canceled  or  modified  by  the  parties  thereto,  without  the  consent 
of  every  creditor  affected  thereby. 


889 


8479-8480  CIVIL  CODE. 

I>^RT   III. 

NUISANCE. 

Title    I.  General  Principles 8479 

II.  Public  NL^SANCES 8490 

III.  Private  Nuisances 8501 


TITLE  I. 

8479.  Nuisance,  u-hat. 

Sec.  3479.  Anj'tbing  ■whieii  is  injurious  to  health,  or  is  indecent  or  offensive 
to  the  senses,  or  an  obstruction  to  the  free  use  of  property,  so  as  to  interfere 
with  the  comfortable  enjoyn^nt  of  life  or  propertj^  or  unlaAvfully  obstructs  the 
free  passage  or  use,  in  the  customary  manner,  of  any  navigable  lake,  or  river, 
bay,  stream,  canal,  or  basin,  or  any  public  park,  square,  street,  or  highway,  is 
a  nuisance.  [Amendment,  approved  Ilarch  30,  1874;  Amendments  1873-4,  2G8; 
took  effect  July  1,  1874. ^^> 

8480.  Public  nuisance. 

Sec.  3480.  A  public  nuisance  is  one  which  affects  at  the  same  time  an  entire 
community  or  neighborhood,  or  any  considerable  number  of  persons,  although 
the  extent  of  the  annoyance  or  damage  inflicted  upon  individuals  may  be  un- 
equal. [Amendment,  approved  March  30,  1874;  Amendments  1873-4,  2G8;  took 
effect  July  1,  1874.^''> 

[The  amendatory  act  of  March  30, 1874  (Amendments  1873-4, 181-269),  from 
which  most  of  the  foregoing  amendments  and  new  sections  of  the  Civil  Code 
are  taken,  contained  three  additional  sections,  relating  to  its  effect,  as  follows:] 

Effect  of  amendatory  act  of  March  30,  1874. 

Sec.  286.  All  provisions  of  law  inconsistent  with  the  provisions  of  this  act 
are  hereby  repealed,  but  no  rights  acc^uired  or  proceedings  taken  under  the 
provisions  repealed,  shall  be  impaired  or  in  any  manner  affected  by  this  repeal; 
and  whenever  a  limitation  or  period  of  time  is  prescribed  by  such  repealed  jn'o- 
visions  for  acquiring  a  right  or  barring  a  remedy,  or  for  any  other  purpose,  has 
begun  to  run  before  tbis  act  takes  effect,  and  the  same  or  auy  other  limitation 
is  prescribed  by  this  act,  the  time  of  limitation  which  shall  have  run  when  this 
act  takes  effect  shall  be  deemed  part  of  the  time  prescribed  by  this  act. 

Effect  of  amendatory  act  as  to  other  acts  passed  at  session  of  1811-2. 

Sec  287..  With  relation  to  the  laws  passed  at  the  present  session  of  the  legis- 
lature, this  act  must  be  construed  as  though  it  had  been  passed  at  the  first  day 
of  the  present  session;  if  the  provisions  of  an}'  law  passed  at  the  present  session 
of  the  legislature  contravene  or  are  inconsistent  with  the  provisions  of  this  act, 
the  provisions  of  such  law  must  prevail. 

(a)   Original  section:  or  navigable  river,  bay,  stream,  canal,  or  basiu,  or  auy 

8eo  3479.  A  niiiHance  consists  in  nnlawfiilly  doing  public  park,  square,  street,  or  highway;  or, 

an  act,  or  omitting  to  perform  a  duty,  which  act  or  4.  In  anyway  renders  other  i)ersous  insecure  in  life, 

omisKion  either:  or  in  the  use  of  property. 

1.  Annoys,  injures,   or  endangers  the   comfort,   re-  {h)   Origiual section: 

Iiose,  health,  or  i^afety  of  others;  or.  Sec.  :i48().  A   public   nuisance  is  one  whiih   afificts 

2.  Oflfends  decency-;  or,  equally  the  riglits  of  an  entire  commuuity  or  niii:?hl)or- 

3.  I'nlawfully   interferes  with,  obstructs,  or  tends  hood,  although  the  extent  of  the  damage  may  be  un- 
to obstruct,  or  renders  dangerous  for  jjassage,  any  lake,  equal. 

890 


NUISANCE.  8480-8501 

Sec.  288.  This  act  shall  take  effect  on  the  first  clay  of  July,  one  thousand 
eight  hundred  and  seventy-four. 

8481.  Private  nuisance. 

Sec.  3481.  Every  nuisance  not  included  in  the  definition  of  the  last  section 
is  private. 

8482.  Wiat  is  not  deemed  a  nuisance. 

Sec.  3482.  Nothing  which  is  done  or  maintained  under  the  express  authority 
of  a  statute  can  be  deemed  a  nuisance. 

8483.  Successive  oivners. 

Sec.  3483.  Eveiy  successive  owner  of  property  who  neglects  to  abate  a  con- 
tinuing nuisance  upon,  or  in  the  use  of,  such  property,  created  by  a  fonner 
owner,  is  liable  therefor  in  the  same  manner  as  the  one  who  first  created  it. 

8484.  Abatement  does  not  jjreclude  action. 

Sec.  3484.  The  abatement  of  a  nuisance  does  not  prejudice  the  right  of  any 
person  to  recover  damages  for  its  past  existence. 


TITLE  II. 

Public  JUiJ*jiancc0. 

8490.  Lapse  of  time  does  not  legalize. 

Sec.  3490.  No  lapse  of  time  can  legalize  a  public  nuisance,  amounting  to  an 
actual  obstruction  of  public  right. 

8491.  Abatement. 

Sec.  3491.  The  remedies  against  a  public  nuisance  are: 

1.  Indictment; 

2.  A  civil  action;  or, 

3.  Abatement. 

8492.  Indictment. 

Sec.  3492.  The  remedy  by  indictment  is  regulated  by  the  Penal  Code. 

8493.  Action. 

Sec.  3493.  A  private  person  may  maintain  an  action  for  a  joublic  nuisance,  if 
it  is  specially  injuiious  to  himself,  but  not  othei-wise. 

8494.  Abatement,  by  tvhom. 

Sec.  3494.  A  public  nuisance  may  be  abated  by  any  public  body  or  officer 
authorized  thereto  by  law. 

8495.  Hoiv  abated. 

Sec.  3495.  Any  person  may  abate  a  joublic  nuisance  which  is  si:)eciall3-  in- 
jurious to  him  by  removing,  or,  if  necessary-,  destroying  the  thing  which  con- 
stitutes the  same,  without  committing  a  breach  of  the  peace,  or  doing  unneces- 
saiy  injury. 

TITLE  III. 

JJnuatc  lluioancco. 

8501.  Remedies  for  private  nuisance. 

Sec.  3501.  The  remedies  against  a  private  nuisance  are: 

1.  A  ciA"il  action;  or, 

2.  Abatement. 

891 


8502-8524  CIVIL  CODE. 

8502.  Abatement ,  ivhen  allowed. 

Skc.  3502.  A  j^erson  injured  by  a  private  nuisance  may  abate  it  by  removing, 
or,  if  necessary,  destroying  the  thing  which  constitutes  the  nuisance,  without 
committing  a  breach  of  the  peace,  or  doing  unnecessary  injury. 

8503.  When  notice  is  required. 

Sec.  3503.  Where  a  private  nuisance  results  from  a  mere  omission  of  the 
wrongdoer,  and  cannot  be  abated  without  entering  upon  his  land,  I'easonable 
notice  must  be  given  to  him  before  enterino-  to  abate  it. 


P.AIIT    IV. 

MAXIMS  OF  JURISPRUDENCE. 

8509.  Sec.  3509.  The  maxims  of  jurisprudence  hereinafter  set  forth  are  in- 
tended not  to  qualify  any  of  the  foregoing  provisions  of  this  code,  but  to 
aid  in  their  just  application. 

8510.  Sec.  3510.  "When  the  reason  of  a  rule  ceases,  so  should  the  rule  itself. 

8511.  Sec  3511.  Where  the  reason  is  the  same,  the  rule  should  be  the  same. 

8512.  Sec.  3512.  One  must  not  change  his  purpose  to  the  injuiy  of  another. 

8513.  Sec.  3513.  Any  one  may  waive  the  advantage  of  a  law  intended  solely 
for  his  benefit.  But  a  law  established  for  a  public  reason  cannot  be  con- 
travened by  a  private  agreement. 

8514.  Sec  3514.  One  must  so  use  his  own  rights  as  not  to  infringe  upon  the 
rights  of  another. 

8515.  Sec  3515.  He  who  consents  to  an  act  is  not  wronged  by  it. 

8516.  Sec  3516.  Acquiescence  in  en-or  takes  away  the  right  of  objecting  to  it. 

8517.  Sec  3517.  No  one  can  take  advantage  of  his  own  wrong. 

8518.  Sec  3518.  He  who  has  fraudulently  dispossessed  himself  of  a  thing- 
may  be  treated  as  if  he  still  had  possession. 

8519.  Sec  3519.  He  who  can  and  does  not  forbid  that  which  is  done  on  his 
behalf,  is  deemed  to  have  bidden  it. 

8520.  Sec  3520.  No  one  should  suffer  by  the  act  of  another. 

8521.  Sec  3521.  He  who  takes  the  benefit  must  bear  the  burden. 

8522.  Sec  3522.  One  who  grants  a  thing  is  presumed  to  grant  also  whatever 
is  essential  to  its  use. 

8523.  Sec  3523.  For  every  wrong  there  is  a  remedy. 

8524.  Sec  3524.  Between  those  who  are  equally  in  the  right,  or  equally  in 
the  wrong,  the  law  does  not  interpose. 

892 


MAXIMS  OF  JUKISPRUDENCE.  8525-8543 

8525.  Sec,  3525.  Between  rights  othci-^N-ise  equal,  the  earhest  is  preforrod. 

8526.  Sec.  3526,  No  man  is  responsible  for  that  which  no  man  can  control. 

8527.  Sec.  3527,  The  law  he\pH  the  vigilant,  before  those  who  sleep  on  their 
rights, 

8528.  Sec.  3528.  The  law  respects  form  less  than  substance. 

8529.  Sec.  3529.  That  which  ought  to  have  been  done  is  to  be  regarded  as 
done,  in  favor  of  him  to  whom,  and  against  him  from  whom,  performance 
is  due, 

8530.  Sec,  3530.  That  which  does  not  appear  to  exist  is  to  be  regarded  as  if 
it  did  not  exist. 

8531.  Sec  3531.  The  law  never  requires  impossibilities. 

8532.  Sec.  3532.  The  law  neither  does  nor  requires  idle  acts. 

8533.  Sec,  3533,  The  law  disregards  trifles. 

8534.  Sec,  3534.  Particular  expressions  qualify  those  which  are  general. 

8535.  Sec.  3535,  Contemporaneous  exposition  is  in  general  the  best, 

8536.  Sec.  3536,  The  greater  contains  the  less, 

8537.  Sec.  3537.  Superfluity  does  not  vitiate. 

8538.  Sec.  3538.  That  is  certain  which  can  be  made  certain. 

8539.  Sec.  3539.  Time  does  not  confirm  a  void  act. 

8540.  Sec  3540.  The  incident  follows  the  principal,  and  not  the  principal  the 
incident. 

8541.  Sec  3541.  An  interpretation  which  gives  effect  is  preferred  to  one  which 
makes  void, 

8542.  Sec  3542,  Inteipretation  must  be  reasonable, 

8543.  Sec  3543.  Where  one  of  two  innocent  persons  must  suffer  by  the  act 
of  a  third,  he,  by  whose  negligence  it  happened,  must  be  the  sufferer. 


893 


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